text:
    STATE of Louisiana v. Jerald J. JENKINS.
    No. 07-KA-586.
    Court of Appeal of Louisiana, Fifth Circuit.
    Jan. 22, 2008.

      Paul D. Connick, Jr., District Attorney, Terry Boudreaux, Anne Wallis, Assistant District Attorneys, Gretna, LA, for Plain-tiffiAppellee, The State of Louisiana.
    Margaret S. Sollars, Attorney at Law, Louisiana Appellate Project, Thibodaux, LA, for Defendant/Appellant, Jerald J. Jenkins.
    Panel composed of Judges MARION F. EDWARDS, SUSAN M. CHEHARDY, and GREG G. GUIDRY.
   SUSAN M. CHEHARDY, Judge.

| a Jerald J. Jenkins appeals his adjudication as a second-felony habitual offender and the resulting sentence of sixty years at hard labor without benefit of probation or suspension of sentence. We affirm.

On March 22, 2007, Jerald J. Jenkins was convicted by a jury of one count of aggravated burglary, a violation of La.R.S. 14:60. He was later sentenced to thirty years’ imprisonment at hard labor. The conviction was affirmed by this Court. State v. Jenkins, 07-423 (La.App. 5 Cir. 10/30/07), 970 So.2d 1166.

On April 13, 2007, the State filed a bill of information that alleged Jerald J. Jenkins is a second-felony offender, based on a 2002 conviction for violation of La.R.S. 40:981.3, distribution of a controlled dangerous substance within a school zone.

The defendant filed a Motion for Discovery of Habitual Offender Basis. During the hearing, defense counsel orally moved to quash the bill, alleging that the Boykin colloquy in the defendant’s 2002 guilty plea was inadequate to advise him of his rights. The trial court denied the motion to quash.

Following a hearing, the trial court found the defendant to be a second felony offender, vacated the original sentence, and resentenced the defendant to | ^imprisonment at hard labor for sixty years without benefit of probation or suspension of sentence. The defendant has appealed the habitual offender adjudication and sentence.

FACTS

At the habitual offender hearing, the State claimed that the defendant had one prior conviction. The habitual offender bill indicates that on August 14, 2002, the defendant pleaded guilty to violation of La.R.S. 40:81.3, “distribution within a school zone.”

Lieutenant Luis Munguia of the Jefferson Parish Sheriffs Office identified the defendant in open court. He testified that the fingerprints he took from the defendant on the date of the habitual offender hearing matched the fingerprints from the defendant’s prior conviction. In addition, the State introduced the transcripts of the Boykin colloquy from the defendant’s 2002 conviction, as well as an excerpt from the transcript of his trial for aggravated burglary. At the trial, in response to cross examination he admitted he had pleaded guilty to a charge of distribution of cocaine within 1,000 feet of a school zone on the same day he pleaded guilty to another charge of distribution of cocaine and a charge of possession of marijuana.

ASSIGNMENT OF ERROR NUMBER ONE

In his only assignment of error, the defendant asserts the trial court imposed an illegal sentence.

The defendant argues his habitual offender sentence is illegal because his Boykin examination in 2002 was defective, the sentence is excessive, and the trial court did not give reasons for imposition of the sentence.

|4The defendant claims the Boykin colloquy from his 2002 conviction is incomplete because it does not contain an explanation of his habitual offender rights. He asserts the trial court erred in accepting his 2002 guilty plea in the habitual offender adjudication because the State failed to prove his 2002 guilty plea was informed, was free and voluntary, and was made with an articulated waiver of his constitutional rights.

The State argues it presented adequate evidence to show that the defendant was advised of his Boykin rights during the predicate guilty plea.

To prove that a defendant is a habitual offender, the State must establish by competent evidence the prior felony conviction and that defendant is the same person who was convicted of the prior felony. State v. Chaney, 423 So.2d 1092, 1103 (La.1982); State v. Smith, 99-1395, p. 3 (La.App. 5 Cir. 4/25/00), 760 So.2d 506, 509, writ denied, 00-1604 (La.6/15/01), 793 So.2d 1233. The State may establish this by various means, such as the testimony of witnesses to prior crimes, expert testimony matching fingerprints of the accused with those in the record of prior proceedings, or photographs contained in a duly-authenticated record. State v. Brown, 514 So.2d 99, 106 (La.1987); State v. Baker, 00-1050, p. 7 (La.App. 5 Cir. 11/15/00), 776 So.2d 1212, 1216-17, writ denied, 01-44 (La.11/16/01), 802 So.2d 621.

The Habitual Offender Act does not require the State to use a specific type of evidence in order to carry its burden at the hearing. State v. Payton, 2000-2899, p. 8 (La.3/15/02), 810 So.2d 1127, 1132. The prior convictions may be proven by any competent evidence. Id.

When the defendant’s habitual offender status is based on a guilty plea in a prior conviction, the State has the burden of proving the existence of the guilty plea |Band that the defendant was represented by counsel when it was taken. State v. Shelton, 621 So.2d 769, 779 (La.1993); State v. Muhammad, 03-419, p. 3 (La.App. 5 Cir. 6/29/04), 880 So.2d 29, 32, writ denied, 04-2082 (La.1/7/05), 891 So.2d 669. If the State meets its burden, the burden shifts to the defendant to produce some affirmative evidence of an infringement of his rights or a procedural irregularity. Id.

If the defendant meets his burden, the burden shifts back to the State to prove the constitutionality of the plea by producing a perfect transcript, which shows the defendant’s waiver of his Boy-kin constitutional rights was voluntary, informed, and express. Shelton, 621 So.2d at 779; Muhammad, 03-419 at pp. 3-4, 880 So.2d at 32. If the State produces anything less than a perfect transcript, i.e., a guilty plea form, minute entry, or imperfect transcript, the trial judge must weigh the evidence, in order to determine whether the defendant’s prior plea was knowing and voluntary. Shelton, 621 So.2d at 780; Muhammad, 03-419 at p. 4, 880 So.2d at 32.

In the present case, the State established the defendant’s second-offender status by competent evidence.

Although the defendant’s 2002 plea colloquy does not mention specifically his right to remain silent, the failure of the trial court to advise the defendant of his right to remain silent is considered harmless error where the defendant’s multiple offender status is established by competent evidence offered by the State at a hearing rather than by admission of the defendant. State v. Knight, 01-881, p. 4 (La.App. 5 Cir. 2/13/02), 811 So.2d 947, 949. Therefore, the failure of the trial court to specifically mention the right to remain silent in the 2002 plea colloquy was harmless error, since the defendant’s second offender status was proven in the multiple offender hearing by competent evidence.

LTlie 2002 guilty plea colloquy reveals that the defendant was adequately advised of his Boykin rights, ie., the rights to trial by jury, against self-incrimination, and to confront his accusers. In addition, the 2002 Boykin colloquy indicates the defendant answered affirmatively when asked if he had read the guilty plea form and if his attorney had explained it to him. The record also indicates that the trial court advised the defendant of the nature of the charges against him and the consequences of a guilty plea, and that defendant indicated he understood them. Accordingly, the trial court properly denied the defendant’s motion to quash. We find no error in the trial court’s determination that the defendant is a second offender.

Failure to state reason for habitual offender sentence

The defendant argues the trial court failed to articulate the reasons for the imposition of his habitual offender sentence as required by La.C.Cr.P. art. 894.1 and La.R.S. 15:529.1(D)(3). The defendant claims that in imposing his habitual offender sentence, the trial court failed to follow the sentencing guidelines in La.C.Cr.P. art. 894.1, including consideration of any mitigating circumstances.

The State argues the defendant has failed to preserve for appellate review the trial court’s failure to provide reasons for the imposition of his sentence pursuant to La.C.Cr.P. art. 894.1. Alternatively, the State contends the trial court did not abuse its discretion based upon the record.

The defendant’s argument concerning sentencing guidelines in La. C.Cr.P. art. 894.1 is misplaced. Compliance with sentencing guidelines pursuant to La.C.Cr.P. art. 894.1 is not required when the sentence imposed is statutorily prescribed under the Habitual Offender Law. State v. Johnson, 01-0842, p. 18 (La.App. 5 Cir. 2/13/02), 812 So.2d 106, 118, writ denied, 02-1037 (La.3/21/03), 840 So.2d 532.

|7The defendant claims the- trial judge erred by failing to provide reasons for determining his habitual offender status, as required by La.R.S. 15:529.1(D)(3), before imposing the enhanced sentence. However, the trial court gave oral reasons in support of its finding the defendant was a second felony offender. Although La. R.S. 15:529.1(D)(3) requires the trial court to provide written reasons for its determination that the defendant is a habitual offender, in this case the trial court’s reasons were transcribed and are a part of the record. Therefore, any failure to supply written reasons is harmless error. State v. Neal, 00-41, pp. 3-4 (La.App. 5 Cir. 5/30/00), 762 So.2d 281, 283.

Excessive Sentence

The defendant argues his 60-year sentence is excessive because “nothing in this record warrants the conclusions that he is the worst of offenders deserving such a harsh sentence.”

The State argues that the record supports the defendant’s sentence. The defendant struck the victim, and took her purse and money. The State notes the defendant’s predicate offense for distribution of drugs within a school zone took place only two years prior to the aggravated burglary, and that he also admitted to a conviction for possession of marijuana.

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 if it is grossly disproportionate to the offense or imposes needless and purposeless pain and suffering. State v. Lobato, 603 So.2d 739, 751 (La.1992); State v. Crawford, 05-494, p. 6 (La.App. 5 Cir. 1/31/06), 922 So.2d 666, 669.

Although a sentence is within statutory limits, it can be reviewed for constitutional exeessiveness. State v. Sepulvado, 367 So.2d 762, 767 (La.1979). A sentence is unconstitutionally excessive when it imposes punishment grossly | sdisproportionate to the severity of the offense or constitutes nothing more than needless infliction of pain and suffering. State v. Smith, 2001-2574, p. 6 (La.1/14/03), 839 So.2d 1, 4.

A trial court is afforded great discretion in determining sentences and sentences will not be set aside as excessive absent clear abuse of that broad discretion. La.C.Cr.P. art. 881.4(D); Smith, 2001-2574 at p. 6, 839 So.2d at 4. 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. Lobato, 603 So.2d at 751; Crawford, 05-494 at p. 6, 922 So.2d at 669.

The three factors that are considered in reviewing a trial court’s sentencing discretion are the nature of the crime, the nature and background of the offender, and the sentence imposed for similar crimes by the same court and other courts. State v. Telsee, 425 So.2d 1251, 1253-1254 (La.1983); Crawford, 05-494 at p. 8, 922 So.2d at 670. The issue on appeal is whether the trial court abused its discretion, not whether another sentence might have been more appropriate. Crawford, 05-494 at p. 8, 922 So.2d at 670-71.

The defendant in this case was convicted of aggravated burglary. After his multiple offender adjudication, the trial court imposed a sentence of imprisonment at hard labor for 60 years without benefit of probation or suspension of sentence. The penalty for a conviction of aggravated burglary is imprisonment at hard labor for not less than one nor more than thirty years. La. R.S. 14:60.

Pursuant to La.R.S. 15:529.1 A(l)(a), as a second-felony offender the defendant faced a possible sentence of imprisonment at hard labor of not less than 15 years and not more than 60 years. State v. Loyd, 35,637, p. 15 (La.App. 2 Cir. 2/27/02), 810 So.2d 1214, 1224, writ denied, 02-1159 (La.4/21/03), 841 So.2d 779. In addition, the defendant’s sentence was required by La.R.S. 15:529.1(G) to | abe imposed without benefit of probation or suspension of sentence. Id. Thus, the defendant received the maximum sentence.

As pointed out by the State, the defendant has two prior drug convictions, one for possession of marijuana and one for distribution of cocaine within a school zone. The distribution of cocaine within a school zone took place only two years prior to this offense, it is a heinous offense endangering children. Further, in committing the aggravated burglary, the defendant struck the victim and took her purse as well as the money inside the purse.

The defendant has made no showing of exceptional circumstances sufficient to justify a downward departure from the maximum sentence. See Davis, 00-1753 at p. 5, 786 So.2d at 839. Therefore, we find no abuse of the discretion afforded the trial court in sentencing.

Assigned Errors Relating To Underlying Conviction

The defendant also claims the trial court failed to give reasons for imposing his original sentence and erred in not observing the 24-hour delay before sentencing him. These alleged errors are moot because the defendant’s original sentence was vacated at the habitual offender hearing. State v. Parker, 00-1365, p. 5 (La.App. 5 Cir. 1/30/01), 778 So.2d 1167, 1169, writ denied, 01-615 (La.2/22/02), 809 So.2d 981.

ERROR PATENT DISCUSSION

We find one patent error in the record. There is a discrepancy between the commitment/minute entry and the sentencing transcript. The habitual offender commitment/minute entry states the trial court informed the defendant he had “two (2) years after judgement [sic] of conviction and sentence has become final to seek post-conviction relief.” However, the transcript of the habitual offender | mproceeding indicates the trial court informed the defendant he had “two years from the date your sentence becomes final, to file post conviction relief applications.”

When there is a discrepancy between the transcript and the minutes, the transcript governs. State v. Lynch, 441 So.2d 732, 734 (La.1983).

La.C.Cr.P. art. 930.8(A) states that a defendant has two years after the judgment of conviction and sentence has become final to file for post-conviction relief. Hence, the defendant received an incomplete advisal of his rights. State v. Tran, 05-518, p. 11 (La.App. 5 Cir. 12/27/05), 919 So.2d 787, 795. Accordingly, we shall remand the case and order the district court to inform the defendant of the appropriate prescriptive period for filing for post-conviction relief. State v. Simmons, 03-20, p. 22 (La.App. 5 Cir. 4/29/03), 845 So.2d 1249, 1263.

For the foregoing reasons, the habitual offender adjudication and sentence are affirmed. The case is, remanded and the district court is ordered to inform the defendant of the appropriate prescriptive period for filing for post-conviction relief, by sending appropriate written notice to the defendant within ten days of the rendition of this Court’s opinion and by filing written proof that the defendant received the notice in the record.

HABITUAL OFFENDER ADJUDICATION AND SENTENCE AFFIRMED; CASE REMANDED.

      . The facts pertaining to the defendant’s trial and original sentencing on the aggravated burglary charge are set out in State v. Jenkins, 07-423 (La.App. 5 Cir. 10/30/07), 970 So.2d 1166.

      . Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). The three core rights enumerated in Boykin are (1) the right to trial by jury, (2) the defendant’s privilege against self-incrimination, and (3) the right to confront his accusers. State v. Robinson, 02-1253, p. 12 (La.App. 5 Cir. 4/8/03), 846 So.2d 76, 85, writ denied, 03-1361 (La.11/26/03), 860 So.2d 1131.

      . This Court routinely reviews records for patent error, pursuant to La.C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975); State v. Weiland, 556 So.2d 175 (La.App. 5 Cir.1990),


source: Caselaw Access Project

author: WALTER J. ROTHSCHILD, Judge.

license: Public Domain

text:
    Cynthia BRIDGES, Secretary, Louisiana Department of Revenue v. HERTZ EQUIPMENT RENTAL CORPORATION.
    No. 07-CA-717.
    Court of Appeal of Louisiana, Fifth Circuit.
    Jan. 22, 2008.

      Antonio Ferachi, Frederick Mulhearn, Donald Bowman, Nykeba R. Walker, Attorneys at Law, Baton Rouge, Louisiana, for Plaintiff/Appellant.
    Harry Rosenberg, Christopher K Ral-ston, Jaclyn C. Hill, Attorneys at Law, New Orleans, Louisiana, for Defendant/Appellee.
    Panel composed of Judges MARION F. EDWARDS, SUSAN M. CHEHARDY, and WALTER J. ROTHSCHILD.
   WALTER J. ROTHSCHILD, Judge.

| ¡.This is an appeal of a ruling of the trial court sustaining defendant’s peremptory exception of prescription. We affirm.

Facts and Procedural History

On December 20, 2006, Cynthia Bridges, acting in her official capacity as Secretary of the Department of Revenue for the State of Louisiana (“the Department”) filed a petition to collect taxes against Hertz Equipment Rental Corporation (“HERC”) for estimated sales and use taxes covering the tax periods of January 1, 1999 through December 31, 2003. HERC responded to this petition with a peremptory exception of prescription. HERC also filed a Motion for Protective Order seeking a stay of all proceedings pending the disposition of the exception of prescription. Both of these matters were heard by the trial court on July 11, 2007, and by [judgment rendered on August 20, 2007, the trial court sustained the exception of prescription and determined that the motion for protective order was moot. This appeal follows.

The Department contends that the trial court erred in finding that valid waivers of prescription were not signed by the HERC when HERC granted express authority to one of its employees to execute the waivers. The Department also contends that the trial court erréd in failing to allow the completion of discovery to allow proof that a valid waiver was signed.

Law and Analysis ■'

LSA-R.S. 47:1579 provides:

There shall be no prescription running against any state tax, license, .excise, interest, penalty or other charge levied under this Sub-title, except that ordained in the Constitution of Louisiana.

The Louisiana Constitution, Art. 7, Section 16, contains the prescriptive period for the collection of taxes and provides as follows:

Taxes, except real property taxes, and licenses shall prescribe in three years after the thirty-first day of December in the . year in which they are due, but prescription may be interrupted or suspended as provided by law.

The running of such prescription shall be suspended prior to the lapse of the prescriptive period for any period by means of a written agreement between the taxpayer and the secretary of the Department of Revenue.' LSA-R.S. 47:1580 B.

. The burden of proof is generally on the party pleading prescription. Hudson v. East Baton Rouge Parish School Board, 02-987 (La.App. 1 Cir. 3/28/03), 844 So.2d 282, 286. However, when the petition is prescribed. on-pits face, the plaintiff has the burden of- showing that prescription has been interrupted in some manner. Id. Evidence may be introduced to support or controvert the peremptory exception raising the objection of prescription pursuant to LSA-C.C.P. art. 931 when the grounds for the exception do not appear on the face of the petition. In the absence of evidence the exception of prescription must be decided upon the facts alleged in the petition, and all allegations therein are accepted as true. Jinright v. Glass, 06-888 pp. 6-7 (La.App. 5 Cir. 2/27/07), 954 So.2d 174, 177; writ denied, 07-570 (La.5/4/07), 956 So.2d 618.

The standard of review of a ruling on prescription was set forth by the Supreme Court in London Towne Condominium Homeowner’s Ass’n v. London Towne Co., 06-401, pp. 4-5 (La.10/17/06), 939 So.2d 1227, 1231:

When prescription is raised by peremptory exception, with evidence being introduced at the hearing on the exception, the trial court’s findings of fact on the issue of prescription are subject to the manifest error-clearly wrong standard of review. Carter v. Haygood, 04-0646 (La.1/19/05), 892 So.2d 1261, 1267. Under the manifest error standard of review, a factual finding cannot be set aside unless the appellate courts finds that it is manifestly erroneous or clearly wrong. Smith v. Louisiana Dept. of Corrections, 93-1305 (La.2/28/94), 633 So.2d 129, 132; Stobart v. State through Dept. of Transp. and Development, 617 So.2d 880, 882 (La.1993); Rosell v. ESCO, 549 So.2d 840, 844 (La.1989). In order to reverse a fact finder’s determination of fact, an appellate court must review the record in its entirety and (1) find that a reasonable factual basis does not exist for the finding, and (2) further determine that the record establishes that the fact finder is clearly wrong or manifestly erroneous. Id. The appellate court must not re-weigh the evidence or substitute its own factual findings because it would have decided the case differently. Id.; Pinsonneault v. Merchants & Farmers Bank & Trust Co., 01-2217 (La.4/3/02), 816 So.2d 270, 278-79. Where there are two permissible views of the evidence, the fact finder’s choice between them cannot be manifestly erroneous or clearly wrong. Id.

| fiIn the present case, HERC submitted the affidavit of Edward Walsh, its assistant corporate secretary and senior staff counsel. Mr. Walsh states that HERC did not waive its constitutional and legal right to assert prescription to the Department’s claim for tax payments. Further, Mr. Walsh states that the waivers relied upon by the Department were obtained from Armando Cordova, a former employee of HERC, who did not have the authority to waive HERC’s right to prescription. According to Mr. Walsh, Mr. Cordova was not an officer or director of HERC, and that the signing of the waivers by him was in contravention of HERC’s practices. Mr. Walsh also states that HERC’s articles of incorporation, bylaws, and corporate resolutions do not grant Mr. Cordova the authority to bind HERC to agreements waiving HERC’s right to prescription.

HERC also submitted a supplemental affidavit of Mr. Walsh, including additional information about Mr. Cordova’s status at HERC and also acknowledging that certain waivers presented by the Department were properly signed by officers of the corporation.

In opposition to the exception, the Department submitted the affidavit of Thomas Burke, an auditor employed by the Louisiana Department of Revenue who was assigned to the HERC matter. Mr. Burke stated that Mr. Cordova was uncooperative in his dealings with the Department, and Mr. Cordova stated that he was the Director of Tax Audits for HERC and as such, all waivers were to be directed to him. Mr. Burke further stated that Armando Cordova was the Department’s only contact person for HERC, and that it was the Department’s office policy to give the waivers to the taxpayer and to have the individual responsible for signing them to do so and return them to the Department.

IfiThe Department also submitted a cover letter dated August 18, 2005 from Armando E. Cordova, Director of Tax Audits for HERC, to the Louisiana Department of Revenue, enclosing the waivers to extend the time limitations for the tax periods from 1999-2002. Also attached to this document are copies of agreements to suspend prescription for these time periods. Each of these agreements was signed by Armando Cordova in his title of Director of Tax Audits for HERC.

In addition, the Department introduced evidence that Armando Cordova represented HERC at a hearing in 2005 before the Louisiana Board of Tax Appeals on previous audits involving HERC. The Department argues that since Mr. Cordova had the authority to represent HERC at a legally binding hearing, he also had the authority to sign waivers on behalf of HERC.

The trial court considered the arguments and evidence submitted by both parties, and concluded that the exception of prescription brought by HERC was well-founded. In reaching this conclusion, the trial court apparently made a factual determination that Armando Cordova did not have the authority to execute a binding waiver of prescription on behalf of HERC. After a review of the record in these proceedings and the applicable jurisprudence on this issue, we find no manifest error of the trial court in reaching this factual determination.

In Bridges v. X Communications, Inc., 03-441 (La.App. 5 Cir. 11/12/03), 861 So.2d 592; unit denied, 03-3431 (La.2/20/04), 866 So.2d 830, a tax assessment case similar to the one before us which was rendered prior to the execution of the purported waivers in the present case, a panel of this Court addressed the issue of an agent’s authority to bind a corporation in |7signing a waiver of prescription. The Court found that the validity of the waivers turns on whether the agents either were authorized to waive this legal right on behalf of the corporation or whether they had apparent authority on which the Department was justified to rely.

In that case, the Court specifically held that the act of surrendering or waiving a corporation’s legal right, such as prescription, is the type of act that requires express power. The Court concluded that the Department was not justified in relying on any perceived apparent authority of the agent to bind the taxpayer to a document that waived a legal right. Rather, the Court relied on business corporation law which sets forth the officers and agents authorized to bind a corporation. The Court stated as follows:

The authority to act on behalf of a corporation can only be conferred by the charter or the bylaws of the corporation or by resolution of the board of directors. La.R.S. 12:81 (A), 12:82(D); McKendall v. Williams, 467 So.2d 1301, 1303 (La.App. 4 Cir.), writ denied, 469 So.2d 986 (La.1985).
A party seeking to enforce an alleged contract against a corporation is required to establish that the officer or agent with whom he contracted was in fact authorized to bind the corporation. North American Sales Alliance, Inc. v. Carrtone Laboratories, Inc., 214 So.2d 167, 172 (La.App. 4 Cir.), writ denied, 253 La. 57, 216 So.2d 306 (1968). Any action taken in the name of a corporation that is unauthorized by the corporation cannot bind the corporation. Marsh Investment Corp. v. Langford, 490 F.Supp. 1320, 1324 (E.D.La.1980), aff'd, 652 F.2d 583 (5th Cir. Unit A Aug.1981), cert. denied sub mom., Ponchartrain State Bank v. Marsh Investment Corp., 454 U.S. 1163, 102 S.Ct. 1037, 71 L.Ed.2d 319 (1982).

Bridges v. X Communications, Inc., 03-441 p. 9, 861 So.2d at 598.

Applying this holding to the facts of the present case, we find that although the Department contends that Armando Cor-dova had the perceived apparent authority to bind the corporation to the agreements to suspend ^prescription, the evidence shows that he had no express power to do so. He was not an officer or director of the corporation, nor was proof presented that Mr. Cordova’s authority to act on behalf of the corporation was conferred by charter, bylaws or resolution of the board of directors. Under these circumstances, the Department was not justified in relying on perceived apparent authority of Mr. Cordova, but was charged with knowledge that the power to bind the corporation in this instance must have been express authority. Bridges v. X Communications, Inc., 03-441 p. 9, 861 So.2d at 598.

In the present case, the Department failed to establish that Mr. Cordova was in fact authorized to bind the corporation in waiving the corporation’s legal right to assert prescription. As such, the record before us fails to contain a valid waiver of prescription for the time periods asserted in the Department’s petition. Absent such a valid waiver, the Department’s claims have prescribed pursuant to the Louisiana Constitution, Art. 7, Section 16.

The Department also contends that the trial court erred in improperly staying discovery in this matter. The Department argues that further discovery would have answered many questions about Mr. Cor-dova’s authority within HERC.

Generally, a trial court has broad discretion in handling discovery matters. In the present case, HERC submitted two affidavits by the assistant corporate secretary specifically outlining Mr. Cordova’s status at HERC and expressly stated therein that Mr. Cordova was not an officer or director of HERC and was not given authority to bind the corporation. Based on this factual scenario, we fail to find that additional discovery would have shed | aadditional light on Mr. Cordova’s ability to suspend the corporation’s legal right to assert prescription. Under the circumstances, we find no abuse of discretion in the trial court’s stay of the discovery.

Conclusion

Accordingly, for the reasons assigned herein, we find no abuse of the trial court’s discretion in staying discovery in this matter. Further, the trial court ruling sustaining HERC’s exception of prescription is affirmed.

AFFIRMED.


author: FREDERICKA HOMBERG WICKER, Judge.

text:
    STATE of Louisiana v. Tyrie WILLIAMS.
    No. 07-CA-648.
    Court of Appeal of Louisiana, Fifth Circuit.
    Jan. 22, 2008.

      William Noland, Attorney at Law, Brandon, MS, for Appellant.
    Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Andrea F. Long, Assistant District Attorneys, Gretna, LA, for PlaintiffAppellee.
    Panel composed of Judges THOMAS F. DALEY, WALTER J. ROTHSCHILD, and FREDERICKA HOMBERG WICKER.
   FREDERICKA HOMBERG WICKER, Judge.

| p.This is a bail bond forfeiture proceeding in which the commercial surety Safety National Casualty Corporation (Safety) filed a devolutive appeal from a March 19, 2007 judgment denying its motion to set aside and nullify the judgment of bond forfeiture. For the reasons assigned, we reverse.

Facts

On August 7, 2006, defendant was charged by Bill of Information with one count of possession of cocaine in excess of 28 grams, a violation of La.R.S. 40:967 F; and, two counts of aggravated criminal damage, violations of La.R.S. 14:55.

Three months later, on November 7, 2006, defendant and his counsel appeared in court for a motion hearing. The hearing was continued as a status hearing and reset for November 28, 2006. Defendant was remanded to the ^Jefferson Parish Prison. Oral notice was given to the defendant of the November 28, 2006 hearing. Defendant was also personally served with notice.

Seven days before the hearing — November 21, 2006 — Safety placed a bond on behalf of defendant.

On November 28, 2006, defendant did not appear. The trial judge issued an attachment and set a contempt hearing. She increased the bond on the drug charge to a new bond of $250,000.

The clerk indicated that in another case, No. 05-3659, there was personal service on the surety and that bond could be forfeited. The state then introduced evidence and asked for that particular bond to be forfeited. The trial judge granted the forfeiture in the other case. She ordered that a rule be set for the surety to produce defendant in court on January 9, 2007.

On January 9, 2007, the court held the hearing for the surety to produce defendant. Defendant was not in court. Deputy Sherman testified he called defendant’s name in the hall and got no response. The state introduced a copy of the bill of information, service information on all parties (including the bond company), a copy of the power of attorney, and asked that the bond be forfeited. The trial judge forfeited three bonds, including the Safety bond. The trial judge issued an attachment, set a contempt rule, and ordered that defendant be held without bond.

That same date, the trial judge rendered a judgment of bond forfeiture against Safety, the surety, and defendant, in the amount of $150,000. The clerk certified the judgment as mailed on February 5, 2007. On February 14, 2007, Safety filed a motion to set it aside.

|4Analysis

Bond forfeitures are not favored by law. State v. McLaurin, 05-857 (La.App. 5 Cir. 3/28/06), 927 So.2d 570, 573 (citations omitted). The state must strictly comply with the statutory procedure in bond forfeiture actions in order to obtain a valid bond forfeiture. Id. La.R.S. 15:85 sets forth the statutory procedure.

La.R.S. 15:85 provides that “[a]ll bonds taken to secure the appearance of any person before any court ... shall be forfeited and collected” according to legislatively mandated forfeiture procedures. R.S. 15:85(1) authorizes the trial judge to render judgment decreeing the forfeiture of the bond under the following conditions:

If at the time fixed for appearance the defendant fails to appear and answer when called, the judge, on motion of the prosecuting attorney, upon hearing of proper evidence including: the bad contract; the power of attorney if any; and the notice to the defendant and the surety as required by Article 344 of the Code of Criminal Procedure, shall immediately and forthwith issue a warrant for the arrest of the person failing to appear and order a judgment decreeing the forfeiture of the bond and against the defendant and his sureties in solido for the full amount of the bond.

“Following the defendant’s failure to appear, the court shall sign a written judgment of bond forfeiture.” R.S. 15:95(2). Then, “[ajfter entering the fact of the signing of the judgment of bond forfeiture in the court minutes, the clerk of court shall promptly mail notice of the signing of the judgment of bond forfeiture.” R.S. 15:85(3)(a). “The notice of the signing of the judgment shall be mailed by United States certified mail with return receipt to ... defendant ... [and] the commercial sureties[.]” R.S. 15:85(3)(a)(i) and (iv). “After mailing the notice of the signing of the judgment of bond forfeiture, the clerk of court shall execute an affidavit of the mailing and place the affidavit and the return receipts in the record.” R.S. 15:85(3)(b). The “[flailure to mail proper notice of the signing of the judgment |fiwithin sixty days after the defendant’s failure to appear shall release the sureties of any and all obligations under the bond.” R.S. 15:85(3)(c).

Thus, the statute requires the clerk to “promptly mail notice of the signing of the judgment.” But the statute also requires that the clerk mail notice of the signing of the judgment within 60 days after the defendant’s failure to appear.

In this case, defendant failed to appear on November 28, 2006 and again on January 9, 2007. We must determine which date constitutes the non-appearance contemplated by R.S. 15:85 which triggers the 60-day period within which the clerk must mail notice of the bond forfeiture judgment. Stated differently, did the 60-day period commence on November 28, 2006 or January 9, 2007?

Safety argues that the period commenced on November 28, 2006 because this was the last court-required date for defendant’s appearance. On the other hand, the state argues that the operative date is the latter date.

We begin our analysis with State v. DeLaRose, 391 So.2d 842 (La.1980) where the Louisiana Supreme Court interpreted a former version of R.S. 15:85. At that time, R.S. 15:85(a) provided in pertinent part (emphasis added):

[i]f at the time fixed for appearance such person fails to appear and answer when called, the judge, on motion of the district attorney, upon hearing of proper evidence including service or attempted service upon the defendant and service upon the surety, shall forthwith enter a judgment decreeing the forfeiture of the bond and against such person and his sureties in solido for the full amount thereof. After entering the fact of such failure to appear in the court minutes, the clerk of court shall promptly mail notice of the forfeiture to the surety on the bond whose address is on the face thereof and shall execute an affidavit of the mailing and place it in the record. A copy of the notice also shall be mailed to the agent of the surety who posted the bond. Mailing the notice to the agent alone shall not constitute compliance with this Section. Failure to mail the proper notice within sixty days after the entry of the forfeiture shall release the surety from all obligations under the bond.

See, DeLaRose, 391 So.2d at 843.

Currently, R.S. 15:85(1) pertinently provides (emphasis added):

If at the time fixed for appearance the defendant fails to appear and answer when called, the judge, on motion of the prosecuting attorney, upon hearing of proper evidence ... shall immediately and forthwith issue a warrant for the arrest of the person failing to appear and order a judgment decreeing the forfeiture of the bond[.]

In DeLaRose, the court observed that the requirement of La.R.S. 15:85(A) that the judgment of forfeiture be entered “forthwith” showed a legislative intent for immediate action while the probability of locating the defendant was greater. There, the 14-month delay between the motion for forfeiture and the entry of the judgment of forfeiture defeated the statutory scheme for prompt notice to the surety to enhance the possibility that the surety would locate and surrender the defendant. The judgment of forfeiture was annulled. DeLaRose, 391 So.2d at 843.

We agree with the First Circuit that although R.S. 15:85 has been amended since DeLaRose, the intent of the statute has not changed. That is, “the purpose of LSA-R.S. 15:85 is to shield the surety from prejudice brought about by the delay in learning of the defendant’s failure to appear.” State v. Gibson, 04-0591 (La.App. 1 Cir. 3/24/05), 907 So.2d 82, 85, 85, n. 3.

The parties rely on cases interpreting the current statute to support their respective positions. We recognize there is a split in the circuits regarding the predicate non-appearance date which triggers commencement of the 60-day delay.

The state relies on Louisiana Bail Bonds, Inc. v. State, 41,091 (La.App. 2 Cir. 5/17/06), 930 So.2d 1113. In Louisiana Bail Bonds, Inc., 930 So.2d at 1114-15, the Second Circuit held: “Because the initial failure to appear herein did not result in a signed forfeiture judgment, there was no failure to mail notice and plaintiffs were not relieved of their obligations under the bond agreement.” 17Accord, State v. Murphy, 40,485 (La.App. 2 Cir. 12/14/05, 917 So.2d 769, writ denied, 06-0056 (La.4/17/06), 926 So.2d 520 (sixty-day period for notice of non-appearance began to run from date a signed and executable bond forfeiture judgment had been entered, rather than from date defendant first failed to appear for court). In reaching that result in Louisiana Bail Bonds, Inc., the Second Circuit considered that the statute expressly stated the clerk was only required to mail notice of the signing of the judgment. As such, the clerk was not required to mail any notice until a forfeiture judgment was signed. Louisiana Bail Bonds, Inc., 930 So.2d at 1116.

The state also relies on State v. Breaux, 94-1562 (La.App. 3 Cir. 5/31/95), 657 So.2d 371. In that case, the 60-day notice was sent within 60 days of the defendants’ third and last failure to appear for trial. The bonding company argued the failure to send notice 60 days from the date the defendant first failed to appear for trial rendered the forfeiture invalid. The Third Circuit disagreed. It held that R.S. 15:85(3)(c) contains no requirement that the requisite notice of bond forfeiture be sent within 60 days of the defendants’ first failure to appear. The notices must be sent within 60 days of the non-appearance date for which the state elects to move for forfeiture. Breaux, 657 So.2d at 372-74.

Eight months later the Third Circuit changed its position.

In State v. Rotramel, 95-1074 (La.App. 3 Cir. 1/31/96), 670 So.2d 378, 380 (a case upon which Safety relies), the court affirmed a judgment of bond forfeiture. There, the insurance company argued that the trial judge erred in failing to forfeit the bond immediately on May 17, 1994 — the date the defendant failed to appear for arraignment. In that ease, the bond forfeiture hearing was held nine days later on May 26, 1994 with no notice to the parties. The trial judge rendered a judgment of bond forfeiture on June 1, 1994. On June 8, 1994, the clerk mailed notice of the | ¿judgment. Rotramel, 670 So.2d at 378. Rotramel noted that “[wjhile the prosecuting attorney has some discretion as to when he may move for a bond forfeiture, it is not without the limitations as prescribed in La.R.S. 15:85.” Rotramel, 670 So.2d at 380. It held that the state has a 60-day window from the defendant’s non-appearance to fulfill the requirements of the statute. Id. The court also noted that “there is no legislative mandate, nor jurisprudential authority that requires the state to move for a bond forfeiture at the time the defendant fails to appear.” Id. The court concluded the procedure used in that case complied with the statute and due process. The state was not required to send notice to the defendant and his surety of the subsequent bond forfeiture hearing. In addition, the court observed that 22 days elapsed between the defendant’s non-appearance and the mailing of the notice of judgment to the parties. Id.

We agree with the Second Circuit in Louisiana Bail Bonds, Inc. that the clerk was not required to mail any notice until a forfeiture judgment was signed. We otherwise decline to adopt other views expressed in Louisiana Bail Bonds, Inc. We also agree with the more recent Third Circuit’s view in Rotramel that the state has a 60-day window from the defendant’s non-appearance to fulfill the requirements of the statute. As such, the 60-day period runs from the date of non-appearance rather than from the judgment of bond forfeiture. However, we otherwise decline to adopt the views expressed by the Third Circuit in Breaux.

Mindful of the statute’s intent, we agree with the Fourth Circuit’s approach in State v. Polk, 96-1785 (La.App. 4 Cir. 1/29/97), 688 So.2d 191, 192, 193, writ denied, 97-0889 (La.5/9/97), 693 So.2d 760. Polk bears a striking similarity to the present case. There, the court held that the statute contemplates a 60-day window from the date of the defendant’s required court appearance. In that case, the defendant failed to appear for arraignment. As in this case, the state did not seek a | ^judgment of bond forfeiture on that date. Instead, the state filed a motion to produce the defendant or forfeit bond. The show cause hearing was held a little over a month later but within the 60-day window from the date of the defendant’s failure to appear for arraignment. However, the finalized judgment of bond forfeiture and the clerk’s mailing of notice to the surety and agent occurred after the delay from the arraignment date had expired. The bonding agent argued on appeal that it should be released from its obligations because more than 60 days elapsed from the time Polk failed to appear for arraignment and when they were given notice of the bond forfeiture judgment. The court found that Polk’s only required appearance was the arraignment and the notice of the show cause hearing did not comply with the requirement of R.S. 15:85(3)(c). The court also noted that the bond forfeiture hearing was not a continuance of the arraignment. Rather, it was a forfeiture procedure, and Polk’s appearance was not required. Thus, the agent’s surety was released from the bond obligations.

Upon review of the record, we find that the January hearing was not a continuation of the November 28, 2006 motion hearing. Instead, it was a hearing for the surety to produce defendant. Thus, as in Polk, it was in essence a bond forfeiture hearing.

It is axiomatic that, as the time period between entry of the forfeiture and the sending of notice thereof increases, the surety’s chances of tracking down the defendant are progressively diminished. The statute requires the clerk to give prompt notice of the signing of the judgment in order to fulfill the statutory purpose of shielding the surety from prejudice brought about by the delay in learning of the defendant’s failure to appear.

We hold that under the circumstances of this case, the clerk had a 60-day window from defendant’s non-appearance for the November 28, 2006 motion | ^hearing in which to mail notice to the surety. The January 9, 2007 date was only a show cause hearing for the surety to produce defendant. As in Polk, the show cause hearing did not comply with the requirement of R.S. 15:85(3)(c). Although the clerk was only required to mail notice of the signed January 9, 2007 judgment of bond forfeiture, the clerk was required under R.S. 15:85(3)(c) to do so promptly within 60 days of defendant’s failure to appear on November 28, 2006. Here, 42 days of the period elapsed by January 9th. The clerk did not, however, mail notice until February 5, 2007 — nine days after the period had expired. Thus, Safety was released from the bond obligation.

CONCLUSION

Accordingly, for the foregoing reasons, the judgment of the trial court is reversed and the judgment of bond forfeiture is annulled.

REVERSED AND RENDERED.

      . Safety also complains that because the trial judge granted a judgment of bond forfeiture on November 28, 2006, the notice was untimely. Safety, however, is incorrect. On that date, the trial judge ordered another bond to be forfeited. It was not until January 9, 2007, that the trial judge rendered judgment ordering the Safety bond to be forfeited.