author: CLARENCE E. McMANUS, Judge.

text:
    STATE of Louisiana v. Jimmy D. CARTER.
    No. 07-KA-270.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 27, 2007.

      Paul D. Connick, Jr., District Attorney, 24th Judicial District, Parish of Jefferson, State of Louisiana, Terry M. Boudreaux, Anne Wallis, Roger Jordan, Jr., Assistant District Attorneys, Gretna, Louisiana, for Plaintiff/Appellee.
    Bruce G. Whittaker, Attorney at Law, Louisiana Appellate Project, New Orleans, Louisiana, for Defendant/Appellant.
    Panel composed of Judges THOMAS F. DALEY, CLARENCE E. McMANUS, and GREG G. GUIDRY.
   CLARENCE E. McMANUS, Judge.

|sOn November 17, 2005, the Jefferson Parish District Attorney’s Office filed a bill of information charging the defendant, Jimmy D. Carter, and two codefendants with looting, a violation of LSA-R.S. 14:62.5(B). After a four-day trial, a twelve-member jury found the defendant guilty as charged. Immediately after the denial of his Motion for New Trial, the trial judge sentenced the defendant to 12

years at hard labor. Pursuant to the state’s filing of a Multiple Bill, the defendant was adjudicated a second felony offender. The trial court vacated his original 12 year sentence, and resentenced him to 18 years at hard labor without benefit of probation or suspension of sentence. The defendant timely appealed the conviction and sentence.

At trial, Deputy Ryan Singleton of the Jefferson Parish Sheriffs Office testified that after Hurricane Katrina he worked twelve-hour shifts from 6:00 a.m. to 6:00 p.m., in two-manned cars due to sporadic communication capabilities, as a result of the hurricane. He patrolled to protect the public and remaining businesses from criminal activity. At the time, the businesses in the area did not have normal security. The alarms did not work because the electricity was out. As officers began to quit after the hurricane, the Sheriffs Department was no longer able to | spatrol in two-man units. According to Deputy Singleton, this put the officers on patrol in danger and at greater risk of injury or death. Therefore, the Sheriffs Department utilized the assistance of personnel from outside agencies, as sworn special deputies. During the week of September 3, 2005, Deputy Singleton was assisted by Captain Kevin Hinsley and Canine Deputy Elmore Horn. Both officers were from Douglas County, Georgia.

On the morning of September 2, 2005, Deputy Singleton discovered that the Burlington Coat Factory (“Burlington”) had been broken into and looted after his shift on the previous day. However, there were still items remaining in the store.

On the morning of the next day, September 3, 2005, Deputy Singleton was in his police vehicle patrolling in the Harvey-Gretna area with the Douglas County officers, when he saw three black males exiting Burlington. Each of the three men had a backpack. He was able to see the faces of the men and the clothing they wore. When the men saw him, they ran. He was unable to follow quickly behind them in his vehicle, because of all the debris. He theorized that the three men went into a convalescent home behind Burlington, because he did not see them running down the street. He checked the area for the men, but he did not find them.

Thirty minutes to an hour later while he was patrolling on Pailet Street, in Harvey, Deputy Singleton saw the same three men that he saw exiting Burlington. They were each still carrying a backpack. Deputy Singleton opined that it would take 30 to 45 minutes to walk from Burlington to Pailet Street using the drainage canal. Deputy Singleton exited his vehicle with his weapon drawn, pointed his weapon at the three men, and ordered the men to drop the backpacks. The three men complied. The Douglas County officers also exited their vehicle with their weapons drawn. Then, Deputy Singleton conducted a pat down search for weapons. No weapons were found on the three men. Deputy Singleton also | ¿searched the backpacks carried by the three men for weapons. While going through the backpacks, Deputy Singleton noticed that the backpacks were from Burlington and the backpacks all contained tagged items of merchandise from Burlington. He counted 26 items in total, including several t-shirts, a pair of shorts, and a pair of brown Nike’s. All of the items found had price tags on them. The value of all the Burlington merchandise totaled $368.00. Deputy Singleton did not separately inventory the items in each backpack. Deputy Singleton placed the subjects under arrest for looting. Thereafter, he returned the merchandise to Burlington, because the Sheriffs department had no services available to photograph or to seize and store the items.

While Deputy Singleton was searching the backpacks, 15 to 20 people were yelling obscenities at the officers from a nearby apartment complex. In response, the Douglas County officers took a position between the apartment complex and Deputy Singleton to protect him.

Deputy Singleton testified in court that he had no doubt in his identification of the defendant and his codefendants as the three men that he saw leaving Burlington, that he later stopped with backpacks and merchandise from Burlington, and that he arrested.

Captain Hinsley and Deputy Horn both testified that their duty was to backup the Jefferson Parish Sheriff Department officers, while volunteering in Louisiana after the hurricane. Officers Hinsley and Horn worked in two-man 12-hour shift patrols following Deputy Singleton from 6:00 a.m. to 6:00 p.m. Captain Hinsley testified that he drove their Douglas County police vehicle behind Deputy Singleton’s department vehicle. They drove with their police lights on and stayed within eyesight of Deputy Singleton, because they were unfamiliar with the area. ^According to Deputy Horn, they were usually within one to 10 car-lengths behind Deputy Singleton’s car.

On the morning of September 3, 2005, Officers Hinsley and Horn again followed Deputy Singleton. Neither of the Douglas County officers saw the individuals coming out of Burlington.

Officers Hinsley and Horn provided backup when Deputy Singleton arrested three men in the 1600 block of Pailet Street. They did not participate in the search of the defendants or the backpack. They secured the scene in order to make sure their safety and that of Deputy Singleton was not jeopardized, as several people on a nearby porch began to come downstairs and approach them. Neither Deputy Horn nor Captain Hinsley could identify the defendant or the codefendants, in court, as the same men who were arrested by Deputy Singleton, on September 3, 2005. Deputy Horn only remembered that one of the men had dreadlocks that poked out from his hat.

Hao Nguyen, the store manager for the Burlington located on Manhattan, in Harvey, testified that the store was in normal condition, on Saturday, August 27, 2005. The four front doors of the store were locked and boarded with wood, in order to secure them for the impending hurricane. When Nguyen returned after Labor Day, a week after the storm, he surveyed the store and found the front entrances to the store were broken into. The hinges on the inside iron gate were broken at the wall, and the right door was broken. Some merchandise had been taken, and some merchandise had been strewn on the floor. Nguyen testified that he did not know any of the codefendants, and had not given them or anyone permission to enter and take merchandise either during or after the hurricane, on September 3, 2005.

I r,Codefendant Larry Cheatteam a/k/a Allen Jones testified that at approximately 9:00 a.m., on September 3, 2005, he and the codefendants were going to his uncle’s residence, on Pailet Street. As they neared his uncle’s residence, the police came behind them. Deputy Singleton jumped out of his vehicle with his gun already pointed at them. He ordered them onto the ground. They complied. The other two officers also got out of their vehicle. Then, the officers cocked their shotguns and pointed them in their direction. When Cheatteam’s cousin approached from down the street to inquire about the situation, Deputy Singleton pointed his weapon at his cousin. Deputy Singleton talked to his cousin, then informed Cheatteam and the other two men that they were going to jail for looting. Cheatteam testified that when he asked Deputy Singleton to define looting, he refused. Cheatteam testified that he did not go into Burlington and put clothes in a backpack, and then run out of the store. In addition, he did not have a backpack containing merchandise from Burlington when he was stopped and subsequently arrested. Cheatteam admitted that he was wearing a hat and his hair was in dreadlocks when he was stopped by the police, on September 3, 2005. However, he denied that he and the codefendants looted Burlington on that date.

The defendant did not testify.

In his first allegation of error, defendant alleges that the trial court erred in denying his motion for mistrial predicated upon the State’s improper reference to inadmissible other crimes evidence.

The defendant and the codefendants were tried together. During the trial, the district attorney questioned codefendant Larry Cheatteam about looting after the storm. Defense counsel for one of the codefendants moved for a mistrial alleging that the State had made a reference to other crimes by implying that Cheatteam was out looting other stores. Defense counsel for the defendant and the |7other codefendant joined in the motion for mistrial. The trial judge sustained the defense’s objection and struck the last question by the district attorney. In addition, the trial judge informed the jury that, “When [she] sustained] an objection to a question, you are to draw no inference on how it was to be answered.”

Later, during trial, the prosecutor asked Cheatteam, “So what do you think should happen to a looter?” Defense counsel for codefendants objected on grounds of rele-vanee, and the trial judge sustained the objection. Then, the prosecutor asked Cheatteam, “You didn’t take that last little kick at thee [sic] Parish while it was down? Did you — ”. After the trial court overruled the codefendant’s objection, the prosecutor again asked, ‘You didn’t take a last little kick at the city while it was down, did you?” Codefendant Cheatteam responded, “No, sir.”

On appeal, the defendant argues that the trial court erred in denying his motion for mistrial, after the district attorney made an impermissible reference to other crimes evidence. The defendant contends that the prosecutor’s question about looting, combined with his other questions about “kicking” the Parish, suggested that he had looted, and had kicked the “Parish while it was down”. He argues this questioning inflamed the jury and caused the jury to punish the defendant for crimes that he did not commit.

Generally, evidence of other crimes, wrongs, or acts committed by a criminal defendant is not admissible at trial, although relevant, if the probative value of the evidence is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, and unless it falls under one of the statutory or jurisprudential exceptions to the exclusionary rule. LSA-C.E. arts. 403 and 404; See State v. Marsalis, 04-827 (La.App. 5 Cir. 4/26/05), 902 So.2d 1081, 1085.

1S[A] mistrial shall be ordered when a remark or comment, made within the hearing of the jury by the judge, district attorney, or a court official, during the trial ... refers directly or indirectly to ... [a]nother crime committed or alleged to have been committed by the defendant as to which evidence is not admissible[J ...

LSA-C.Cr.P. art. 770(2). The comment must not arguably point to a prior crime; rather, to trigger a mandatory mistrial, the remark must unmistakably point to evidence of another crime. State v. Clark, 05-652 (La.App. 5 Cir. 2/14/06), 924 So.2d 282, 289, writ denied, 06-622 (La.10/13/06), 939 So.2d 372, and writ denied, 06-1175 (La.1/12/07), 948 So.2d 138. “An admonition to the jury to disregard the remark or comment shall not be sufficient to prevent a mistrial.” LSA-C.Cr.P. art. 770. An impermissible reference to inadmissible evidence of another crime committed or alleged to have been committed by defendant, which is deliberately elicited by the prosecutor is imputable to the State and triggers the rule mandating a mistrial. State v. Marsalis, 902 So.2d at 1085. A denial of a motion for mistrial will not be disturbed on appeal absent an abuse of that discretion. State v. Clark, 924 So.2d at 290. An improper reference to other crimes evidence is subject to a harmless error analysis. State v. Marsalis, 902 So.2d at 1085.

In the present case, the prosecutor was questioning a codefendant, not the defendant. The prosecutor made no reference to other crimes committed or allegedly committed by the defendant. Instead, the prosecutor only asked the codefendant if there had been looting in any of the closed businesses to which the eodefendant responded that he guessed so. But, he added that he had not seen any looting. Then, the prosecutor asked the codefen-dant if he had gone into any of those stores. The codefendant did not reply, because the defense objected. It appears that none of the prosecutor’s questions or the codefendant’s answers unmistakably pointed to evidence of another crime committed by the defendant. In addition, as noted in the defense and the State, the prosecutor’s subsequent |flquestions, following the denial of the motion for mistrial, also do not refer to other crimes evidence. Therefore, we find that the trial judge did not err in denying the defense’s motion for a mistrial.

In addition, even assuming the prosecutor’s questions constituted an impermissible reference to other crimes, any such error is subject to a harmless error analysis. The test for determining if error was harmless is whether the verdict actually rendered in the case was surely unattributable to the error. State v. Marsalis, 902 So.2d at 1087. Considering Deputy Singleton’s consistent and positive identification of the defendant at the scene of the looting, at the subsequent stop and arrest, and at trial, in light of the evidence, it appears that even if this was other crimes evidence the admission was harmless.

In his second allegation of error, the defendant argues that his habitual offender sentence is excessive. He claims that his age of 35 years and the nature of his crime, i.e. “scavenging in a looted out business,” makes the sentence he received excessive. The defendant also suggests that the trial court did not consider the mitigating factors pursuant to LSA-C.Cr.P. art 894.1. The defendant contends that he was just looking for clean clothes. Therefore, he is not the most blameworthy of individuals. He notes that his conviction is for a property crime, which is not a horrific conviction.

In the present case, the defendant did not raise the issue of the trial judge’s failure to comply with LSA-C.Cr.P. art. 894.1 below. Since the defendant failed to raise this issue in the trial court below or in a motion to reconsider sentence, he is precluded from raising this issue on appeal. State v. Wickem, 99-1261 (La.App. 5 Cir. 4/12/00), 759 So.2d 961, 967-68, writ denied, 00-1371 (La.2/16/01), 785 So.2d 839.

In addition, the record reveals that the defendant failed to file a motion to reconsider sentence. LSA-C.Cr.P. art. 881.1(B) states that “[t]he motion [to reconsider sentence] shall be oral at the time of sentence or shall be in writing thereafter and shall set forth the specific grounds on which the motion is based.” LSA-C.Cr.P. art. 881.1(E) provides:

[fjailure to make or file a motion to reconsider sentence or to include a specific ground upon which a motion to reconsider sentence may be based, including a claim of excessiveness, shall preclude the state or the defendant from raising an objection to the sentence or from urging any ground not raised in the motion on appeal or review.

See State v. Adair, 04-120 (La.App. 5 Cir. 5/26/04), 875 So.2d 972, 974. Failure to state the specific grounds on which the motion is based precludes a defendant from raising issues relating to statutory errors or deficiencies in sentencing on appeal, not constitutional excessiveness. State v. Allen, 03-1205 (La.App. 5 Cir. 2/23/04), 868 So.2d 877, 879. This Court has reviewed a defendant’s constitutional challenge of a sentence, in the absence of a motion to reconsider sentence. State v. Adair, 875 So.2d at 974. The failure to file a motion to reconsider sentence or to state specific grounds upon which the motion is based, limits the defendant to a bare review of the sentence for constitutional excessiveness. Id.; State v. Crawford, 05-494 (La.App. 5 Cir. 1/31/06), 922 So.2d 666, 669.

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. Crawford, supra. |nA sentence that is grossly disproportionate to the severity of the offense or is nothing more than the needless and purposeless imposition of pain and suffering is unconstitutionally excessive, even if it is within the statutory limits. State v. Riche 608 So.2d 639, 640 (La.App. 5 Cir. 10/27/92), unit denied, 613 So.2d 972 (La.1993). 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. LSA-C.Cr.P. art. 881.4(D), State v. Adair, 875 So.2d at 974-75; State v. Riche, 608 So.2d at 640. In reviewing a sentence for exces-siveness, 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. State v. Crawford, supra. Age is an insufficient justification for a downward departure in a sentence. State v. Hernandez, 02-892 (La.App. 5 Cir. 1/28/03), 839 So.2d 281, 285.

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. Crawford, 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. State v. Crawford, 922 So.2d at 671.

The defendant, in this case, was convicted of looting, a violation of LSA-R.S. 14:62.5(B). LSA-R.S. 14:62.5 states in pertinent part:

Looting is the intentional entry by a person without authorization into ... any structure belonging to another and used in whole or in part as a place of business, ... in which normal security of property is not present by virtue of a hurricane, flood, ... act of God, or force majeure of any kind, ... and the obtaining or exerting control over or damaging or removing property of the owner.

112The sentencing exposure for a looting conviction pursuant to LSA-R.S. 14:62.5(B) is a fine of “not more than ten thousand dollars or imprisoned at hard labor for not more than fifteen years, or both.” LSA-R.S. 14:62.5(B). After his multiple bill hearing, the defendant was found to be a second felony offender. Based on his second felony multiple offender status, the defendant’s sentencing exposure for imprisonment was not less than 7V2 years and not more than 30 years. LSA-R.S. 15:529.1(A)(l)(a). The defendant received a habitual offender sentence of 18 years. Therefore, the defendant received a mid-range sentence.

We find no abuse of discretion in the trial court’s sentence. The nature of the crime, and the circumstances under which the arrest took place, suggest that the events that took place in the aftermath of the hurricane presented local authorities, especially the police departments, with unprecedented problems that overwhelmed the system. The police force was reduced and, therefore, unable to employ their normal safety procedures to protect the public and themselves. The defendant’s expressed rationale for the looting, i.e. the need for clean clothes, was unjustifiable when juxtaposed against the city’s need to maintain order, especially during a time of crisis. The defendant’s actions placed the police officers in danger as they carried out their duty to enforce the law. Finally, the defendant had a prior conviction for armed robbery, a crime of violence, for which he received a seven-year sentence. We find defendant’s allegation of excessive sentence to be without merit.

In his third allegation of error, 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); State v. Weiland, 556 So.2d 175 (La.App. 5 Cir.1990). We note the following which requires our attention.

As noted by the State in its brief, the defendant was not advised of the prescriptive period for filing for post-conviction relief at either the original sentencing or the habitual offender sentencing hearings, as required by LSA-C.Cr.P. art. 930.8.

LSA-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. A review of the record indicates that the trial judge failed to advise the defendant of the appropriate prescriptive period for filing post-conviction relief as required by LSA-C.Cr.P. art. 930.8. State v. Simmons, 03-20, p. 14 (La.App. 5 Cir. 4/29/03), 845 So.2d 1249, 1263. Accordingly, we remand this case to the trial court and order the court to inform 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. Id.

For the above discussed reasons, the defendant’s conviction and sentence are affirmed. The case is remanded and the trial court is ordered to notify defendant of the prescriptive period for post-conviction relief by written notice within ten days of rendition of this opinion and to file written proof that defendant received the notice in the record of the proceedings.

AFFIRMED AND REMANDED.

      . This Court has considered the appeals of codefendants, State v. Corey Cheatteam a/k/a Kedrick Carter, 07-272 and State v. Allen Jones a/k/a Larry Cheatteam, 07-271.

      . The trial judge sentenced the defendant to 18 years at hard labor without benefit of probation or suspension of sentence. However, in his brief, the defendant notes that he received a sentence of 18 years without parole. Apparently, the defendant is referring to his parole eligibility, which is determined by the Department of Corrections pursuant to LSA-R.S. 15:574.4. See State ex rel. Porter v. State, 04-2080 (La. 11/28/05), 916 So.2d 123.

      . The record also reveals that the trial judge did not observe the mandatory 24-hour time delay between denying a motion for new trial and imposing sentence. However, when the defendant’s original sentence is set aside at a multiple offender proceeding, the trial court's failure to observe the 24-hour delay is harmless. State v. Sims, 02-1244 (La.App. 5 Cir. 4/29/03), 845 So.2d 1116, 1122, writ denied, 03-2189 (La.8/20/04), 882 So.2d 570.

      . The commitment/minute entries for both the defendant’s original and his habitual offender sentencing indicate that on both occasions the defendant was informed of his post-conviction rights. The transcripts of the defendant’s original sentencing and his habitual offender sentencing hearings indicate that the defendant was not informed of his post-conviction rights on either occasion. When there is a discrepancy between the transcript and the commitment/minute entry, the transcript governs. See State v. Lynch, 441 So.2d 732, 734 (La.1983).


source: Caselaw Access Project

author: TERRI F. LOVE, Judge. BELSOME, J.,

license: Public Domain

text:
    STATE of Louisiana v. Ramon RAMIREZ.
    No. 2007-KA-0652.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 9, 2008.

      Eddie J. Jordan, Jr., District Attorney, Eraka Williams, Assistant District Attorney, Autumn Cheramie, Assistant District Attorney, New Orleans, LA, for Plaintiff/Appellant.
    Stacy L. Morris, New Orleans, LA, for Defendant/Appellee.
    (Court composed of Judge DENNIS R. BAGNERIS, SR., Judge TERRI F. LOVE, Judge ROLAND L. BELSOME).
   TERRI F. LOVE, Judge.

l/The State filed a bill of information, charging the defendant-appellee, Mr. Ramon Ramirez with aggravated rape, in violation of La. R.S. 14:42, and attempted second-degree murder, in violation of La. R.S. 14:(27)30.1. The defendant entered pleas of not guilty at his arraignment. Trial was set, reset and continued several times, and the State failed to have defendant transported to court from custody on numerous occasions. On December 12, 2006, the defendant filed a motion to quash, alleging that the prescriptive period in which the State must commence trial had lapsed. The trial court granted the motion to quash and a release was issued.

We hold that the motion to quash granted by the trial court was not premature. The trial court’s granting of the motion to quash is affirmed.

PROCEDURAL HISTORY

On November 29, 2001, defendant was indicted for aggravated rape, in violation of La. R.S. 14:42, and attempted second-degree murder, in violation of La. R.S. 14:(27)30.1. On December 14, 2001, defendant entered pleas of not guilty. The minute entry of June 20, 2002, reflects that counsel for defendant filed a motion to suppress the identification. Testimony was taken, and the trial court ptook the matter under advisement. Counsel for defendant filed the first motion to quash on May 12, 2003. There is no indication in the record that the trial court ruled on the motion. Trial was set for November 5, 2003 and continued by the State to December 1, 2003 and again to January 27, 2004. On January 27, 2004, defendant was not transported to court from custody; counsel for defendant filed a second motion to quash the indictment. On February 13, 2004, the State filed a response to the motion to quash. On February 17, 2004, the trial court denied the motion to quash. Trial was set for March 30, 2004, but did not proceed because defendant was not transported to court from custody. On December 12, 2006, counsel for defendant filed a third motion to quash. A ruling on the motion was set for January 24, 2007; defendant’s presence was waived. On that date the matter was continued by the State. The hearing was continued to January 30, 2007; the State again requested a continuance. Defendant’s presence was waived, and the matter was continued to February 7, 2007. On that date the State filed a response to the motion to quash. Defendant’s trial was reset and continued numerous times because the State failed to have defendant transported to court from custody. The trial court’s ruling was set for February 13, 2007; defendant’s presence was waived; the trial court granted the motion to quash, and a release was issued. The State appeals from this ruling.

The facts surrounding defendant’s arrest are limited to what is stated in the grand jury indictment. On July 31, 2001, defendant is alleged to have committed aggravated rape upon D.C. and attempted to commit second-degree murder of D.C.

| ,MOTION TO QUASH

The State’s sole assignment of error is that the trial court improperly granted defense counsel’s motion to quash. The State argues that prescription was interrupted by defendant’s pre-trial motions filed on June 20, 2002, which have not been ruled on, by numerous continuances by the defense, and by the delays caused by the aftermath of Hurricane Katrina.

The defendant argues that the motions referred to by the State were filed in a discovery packet on January 11, 2002, that the State was ordered to respond, and that no pretrial discovery motions were filed after that date. The defense further argues that the trial court ruled on all the pre-trial motions that were filed in the discovery packet. Defendant asserts that the defense filed only two written motions for a continuance because of illness, and that the eight continuances attributed to the defense by the State is a misrepresentation of the record. Defendant maintains that the time limitation had elapsed before Hurricane Katrina struck New Orleans.

In his motion to quash, the defendant asserted that the State failed to commence trial within the prescriptive period as set forth by La.Code Crim. Proc. art. 578, requiring the charges to be quashed. Specifically, the defendant argued that throughout the proceedings he was in continued custody since his arrest in July, 2001, and the State, asserting no causes beyond its control, delayed his trial beyond the prescriptive period.

Pursuant to La.Code Crim. Proc. art. 578(A)(2), no trial shall commence in other felony (non-capital) cases after two years from the date of institution of prosecution. A motion to quash is the proper procedural vehicle for challenging an untimely commencement of trial. La.Code Crim. Proc. art. 532(7). When a |4defendant has brought an apparently meritorious motion to quash based on prescription, the State bears a heavy burden to demonstrate either an interruption or a suspension of the time limit such that prescription will not have run. State v. Brown, 451 So.2d 1074 (La.1984).

A trial court’s ruling granting a defendant’s motion to quash is a discretionary one, which should not be disturbed on appeal absent a finding of the trial court’s abuse of discretion. State v. Love, 00-3347, pp. 9-10 (La.5/23/07), 847 So.2d 1198, 1206. When, as here, the defendant moves to quash pursuant to the lapse of the two-year period that the State has commence trial, the statute of limitation should be given effect unless the State carries its burden of showing valid grounds to support an interruption or sufficient suspension of these time periods. State v. Rome, 93-1221 (La.1/14/94), 630 So.2d 1284.

The purpose of the statute’s mandating dismissal, when legislative time limits have elapsed, is to enforce the accused’s right to a speedy trial and to prevent the oppression caused by suspending criminal prosecutions over citizens for indefinite periods of time. State v. Walgamotte, 415 So.2d 205, 210 (La.1982). Furthermore, the statutory scheme limiting the State’s time in which to commence trial after initiating prosecution serves to prevent delays in the administration of justice by imposing on judicial tribunals an obligation of proceeding with reasonable dispatch in the trial of criminal prosecutions. Id. at 251.

La.Code Crim. Proc. art. 579(A)(2) provides that the period of limitation will be interrupted if a defendant cannot be tried because of insanity or because his presence for trial cannot be obtained by legal process, or for any other cause that is beyond the control of the State. This, as applied here, the statute provides that an 1 Rinterruption of prescription occurs when the State is unable, through no fault of its own, to try a defendant within the period specified by statute-in this case two years. Pursuant to La.Code Crim. Proc. art. 579(B), once the cause of the interruption no longer exists, the two year time limit begins again.

In contrast, the prescriptive period is merely suspended until the trial court rules on the filing of a motion to quash or other preliminary plea. This suspension lasts only from the date the motion is filed until the date that the trial court rules on the motion. State v. Blazio, 99-0765 (La.App. 4 Cir. 3/15/00), 756 So.2d 606. However, in no case shall the State have less than one year after the ruling on the preliminary pleas to commence the trial. La. Code Crim. Proc. art. 580.

A preliminary plea is any plea filed after prosecution is instituted, but before trial, that causes the trial to be delayed; those pleadings include properly filed motions to quash, motions to suppress, or motions for continuance as well as applications for discovery and bills of particulars. State v. Brooks, 02-0792, p. 6 (La.2/14/03), 838 So.2d 778, 782. A motion to continue trial, filed by the defendant or jointly with the State, constitutes a preliminary plea under La.Code Crim. Proc. art. 580. State v. Baudier, 00-1108, p. 11 (La.App. 4 Cir. 5/23/01), 789 So.2d 696, 705.

The defendant asserts that the State failed to commence trial within the prescriptive period after the defendant was formally indicted by a true bill of information dated November 29, 2001. Under La.Code Crim. Proc, art. 578(A)(2), the State initially had two years from November 29, 2001, the date of the institution of prosecution, within which to bring the defendant to trial in this case involving a non-capital felony. His first trial date was June 18, 2003. The record reflects that counsel for defendant filed the first motion to quash on May 12, 2003. | fiThere is no indication in the record that the trial court ruled on the motion. Trial was set for November 5, 2003 and continued by the State to December 1, 2003 and again to January 27, 2004.

On January 27, 2004, defendant was not transported to court from custody; defense counsel filed a second motion ■ to quash. On February 13, 2004, the State filed a response to the motion to quash. On February 17, 2004, the trial court denied the motion. Trial was set for March 30, 2004, but trial did not proceed because defendant was not transported to court from custody. We find, as the defendant contends, that the State’s failure to commence trial subsequent to the trial court’s ruling on the final preliminary plea filed by defense counsel on May 12, 2003 was not due to causes beyond the State’s control. Defendant’s trial was reset and continued numerous times due to the State’s failure to have defendant transported to court from custody.

Further, we pretermit discussion of the State’s argument as to the interruption of the prescriptive period due to Hurricane Katrina, as we find that the record reflects that the two-year period within which the State had to bring the defendant to trial in this case lapsed prior to Hurricane Katrina. Given the State’s failure to bring the defendant to trial within the prescriptive period, we can not say that the trial court abused its discretion in granting the defendant’s motion to quash.

DECREE

Accordingly, the trial court’s granting of the motion to quash is affirmed.

AFFIRMED.

BELSOME, J., dissents with reasons.

BELSOME, J.,

dissents with reasons.

Lin this case, the Defendant was indicted on November 29, 2001. The trial date was continued on several occasions throughout 2002, including at least one motion to continue filed by the defense in May 2002. The first motion to quash was filed by the defense on May 12, 2003. As the majority notes, there is no indication in the record that the trial court ruled on the May 12, 2003 motion. A second motion to quash was filed on January 27, 2004. Accordingly, the two-year time limitation was suspended until February 17, 2004, when the court ruled on the second motion to quash. La. C. Cr. Pr. art. 580 (“[w]hen a Defendant files a motion to quash or other preliminary plea, the running of the periods of limitation established by Article 578 shall be suspended until the ruling of the court thereon”). Article 580 further provides that “in no case shall the State have less than one year after the ruling to commence the trial.” Id. Therefore, the State had until February 2005 to bring the Defendant to trial.

The trial date was continued on several occasions in 2004 by both the State and by the defense. A review of the docket master reflects that the trial was continued on defense motion on March 30, 2004, and again on April 27, 2004 by defense motion, and by joint motion on August 4, 2004. In 2005, the docket master indicates that the trial was continued on defense motion on June 14, 2005, |2and on joint motion on August 23, 2005 to October 18, 2005. This Court has held that “a motion to continue trial, filed by the defendant or jointly with the State, constitutes a preliminary plea under La. C. Cr. P. Art. 580.” State v. Baudier, 2000-1108, p. 11 (La.App. 4 Cir. 5/23/01), 789 So.2d 696, 705 (citing State v. Blazio, 99-0765, p. 3 (La.App. 4 Cir. 3/15/00), 756 So.2d 606, 608).

Finally, when Hurricane Katrina interrupted the prescriptive period in this case, the two-year limitation imposed by Article 578 commenced anew once the causes preventing the State from trying the defendant were removed and the courts reconvened. La. C. Cr. Pr. art. 579(B); State v. Brazile, 2006-1611 (La.App. 4 Cir. 5/30/07), 960 So.2d 333. Therefore, because the facts and circumstances of this particular case evidence that the two-year time limitation had not expired, I must respectfully dissent.

      . The name is omitted given juvenile status.


author: DAVID S. GORBATY, Judge.

text:
    SUCCESSION OF Jose’ E. VAZQUEZ.
    No. 2007-CA-0816.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 16, 2008.

      Maria I. O’Byrne Stephenson, Lisa C. Matthews, Catherine I. Chavarri, Kathleen D. Lambert, New Orleans, LA, for Jose E. Vasquez.
    Cameron C. Gamble, Cameron C. Gamble, A PLC, J. Kendall Rathburn, Moliere, Flanagan & Landry, Metairie, LA, for Kimberly Vasquez and Letcia Rodriguez, as Natural Tutrix of the Minor, Veronica Vasquez.
    (Court composed of Judge PATRICIA RIVET MURRAY, Judge MAX N. TOBIAS JR., Judge DAVID S. GORBATY).
   DAVID S. GORBATY, Judge.

hln this appeal, appellant Jose E. Vazquez avers that the trial court erroneously allocated the ownership and liability interests of the Succession of Jose A. Vazquez. For the reasons set forth below, we affirm in part and reverse in part.

FACTS AND PROCEDURAL HISTORY

Jose A. Vazquez died testate on July 11, 2003, leaving a surviving spouse, Kimberly Share Vazquez, and a natural minor child, Veronica Aurora Vazquez. Decedent’s will contained a testamentary trust, with decedent’s father, Jose E. Vazquez, as executor and trustee, and to which all of the succession assets were to be transferred, with the exception of a $15,000 bequest to his widow, Kimberly. The will was probated and Jose E. Vazquez was qualified as executor. The trust was never funded or established.

Three years later, a hearing was held to determine the executor’s competency, and on September 19, 2006, the court discharged Jose E. Vazquez from his fiduciary position as executor of the succession and trustee of the trust. Thereafter, a motion for execution of a June 27, 2006 consent judgment and | ¡.distribution of the succession and trust was heard. In March 2007, the trial court issued its notice of judgment disbursing the assets and assigning liability for the debts of the succession. Appellant has filed this appeal from specific portions of that judgment.

DISCUSSION

The succession assets include the ownership of several corporations, including Vazquez Seafood Restaurant, Inc., Ideal Homes, Inc., and Lady L. Towing, Inc. These businesses were never conducted as corporations. They were operated by Jose E. Vazquez, appellant, and his son, decedent, Jose A. Vazquez, as sole proprietor-ships or joint ventures.

Appellant avers that the trial court erred in charging him personally with the pre-storm value of the bobcats and trailers.

This construction equipment belonged to and was being used by Ideal Homes prior to decedent’s death. As part of the assets of Ideal Homes, it formed a part of the assets of the estate and was listed in the Preliminary Descriptive List and valued at $43,000. This equipment was either destroyed by Hurricane Katrina or stolen after Hurricane Katrina. Appellant states that these items were insured, and the insurance lapsed, but the decedent had not renewed the insurance at the time of his death. After decedent’s death, appellant “never tried” to obtain insurance on the machines.

The executor is liable for any loss resulting from his failure to preserve and maintain the property of the succession. “A succession representative is a | ^fiduciary with respect to the succession, and shall have the duty of collecting, preserving, and managing the property of the succession in accordance with law. He shall act at all times as a prudent administrator, and shall be personally responsible for all damages resulting from his failure to so act.” La. C.C.P. art. 3191.

The executor should have protected the value of the bobcats and trailers by obtaining insurance. He failed to do so, and is now responsible for its value to the estate. This assignment of error has no merit.

Next, appellant argues that the trial court should have assessed the value of the “Creole Lynn” boat at $28,000. Appellees have no objection to this valuation. Therefore, this court reverses that portion of the judgment, and assesses the value of the Creole Lynn at $28,000.

Appellant further contends that the trial court should have deducted the $5,000 commission paid to the broker for the sale of the Creole Lynn from the assessed sale price or added the $5,000 to the liabilities owed.

There was no concrete evidence presented as to the commission paid on the sale of the boat. Appellant was the only witness to the transaction, and did not deposit any of the proceeds of the sale into the account of the succession. Since the commission amount was not proven, we find this assignment of error to be meritless.

Next, appellant argues that the trial court should have held that the Creole Lynn was owned half by the succession and half by Jose E. Vazquez.

|4This item was listed in the Preliminary Descriptive List (referred to as “Lady L”) filed by the executor, as owned one-half by the succession with a value of $29,000. The Descriptive List shows loans for $30,000 and $8,000 against this asset. Appellant testified that the loan for $30,000 was made by him, personally, to decedent; and the $8,000 loan was made by Vazquez Seafood Restaurant to decedent, personally. However, there is no evidence other than appellant’s testimony as to these loans. Proof of claims against estates are dependent upon testimony of oral commitments and promises of a deceased person, which is regarded by the courts as the weakest kind of evidence and subject to the closest scrutiny. Succession of Moore, 225 La. 248, 72 So.2d 494 (1954). Such testimony cannot serve as a basis for recovery unless corroborated by strong and believable circumstances. Succession of McBurney, 162 La. 758, 111 So. 86 (1926).

La. R.S. 13:3721 provides:

Parol evidence shall not be received to prove any debt or liability of a deceased person against his succession representative, heirs, or legatees when no suit to enforce it has been brought against the deceased prior to his death, unless within one year of the death of the deceased:
(1) A suit to enforce the debt or liability is brought against the succession representative, heirs, or legatees of the deceased;
(2) The debt or liability is acknowledged by the succession representative as provided by Article 3242 of the Code of Civil Procedure, or his placing it on a tableau of distribution, or petitioning for authority to pay it;
(3) The claimant has submitted to the succession representative a formal proof of his claim against the succession, as provided in Article 3245 of the Code of Civil Procedure.
The provisions of this section cannot be waived impliedly through the failure of a litigant to object to the admission of evidence which is inadmissible thereunder.

| sNone of these circumstances have been met; as such, appellant’s testimony is inadmissible. The boat was sold by the executor after decedent’s death, and the monies have not been accounted for. As such, the total amount of the sale price of $28,000 should be included in the estate account, and paid by and charged against the executor’s assets.

Appellant also states that the trial court should have granted him a management fee of $72,000 from Ideal Homes, Inc. Appellant transferred $72,000 from the Ideal Homes, Inc. bank account to his personal account. He states he is entitled to this money as a management fee for his services in selling the property of Ideal Homes after decedent’s death.

The executor shall preserve the property of the succession. La. C.C.P. art. 3221. Further, the executor may pay an estate debt only with the authorization of the court, except as provided by La. C.C.P. art. 3224 and 3302. La. C.C.P. art. 3224 provides that the court may authorize the continuation of a business of the deceased for the benefit of the succession, after the executor has complied with La. C.C.P. art. 3229, which requires the publication of notice of the application to the court for an order to continue business. There is no legal authority for the executor to charge the estate for fees or compensation without court order. The payments of debts or charges against the estate can only be authorized by the court.

Further, the co-owner of a business in a succession, whether he is the executor of the succession or otherwise, is not legally entitled to receive or charge any fees or payment from or to the other co-owner (in this case, the succession) for | (¡managing the business in which the executor is a co-owner, without a special contract or agreement and court approval. Succession of Rosenthal, 369 So.2d 166 (La.App. 4 Cir.1979); Beavers v. Stephens, 341 So.2d 1278 (La.App. 3 Cir.1977); Conrad v. Burbank, 25 La.Ann. 112 (La.1873). Finally, there is no documentary evidence of any services provided by the executor, and the heirs had no opportunity to question or contest the authority of the claimant to incur such an obligation on behalf of the succession. As such, we hold that this assignment of error is meritless.

Next, appellant argues that the trial court should have awarded him $18,000 and assessed a liability against the Succession for $18,000 as payment for his work and effort in cleaning and gutting properties owned and co-owned by the Succession.

Jose E. Vazquez withdrew $18,000 from the Ideal Homes bank account and paid himself for the gutting of the estate property on Venus Street and the property at 5339 Franklin Avenue. As discussed above, this fee is not properly payable. The executor had no authority to withdraw those funds from the monies of the succession. Furthermore, Jose E. Vazques is a co-owner of the aforementioned properties, and as such, is not entitled to compensation for services rendered on behalf of preserving and maintaining the property. Succession of Rosenthal, supra; Beavers v. Stephens, supra.

Appellant claims he gutted the properties himself and has no receipts for paid labor. He states he obtained estimates for the work but did it himself to save 17money, but has no proof of estimates from independent contractors or laborers. He has submitted no work or time sheets, no material costs, and no witnesses. This amount was properly charged back against the executor. This assignment of error has no merit.

Appellant further contends that the trial court should have awarded him an executor fee of two and a half percent of the assets, to be deducted from the Succession.

A succession representative has no absolute right to the executor’s fee provided for in La. C.C.P. art. 3351 until he has completed the administration of the succession and has filed his final account. Succession of Marcour, 173 So. 587 (La.App.1937). Where the executor is guilty of gross negligence in handling the succession, he is not entitled to a commission. Succession of Liles, 24 La. Ann. 490 (1872); Succession of Touzanne, 36 La. Ann. 420 (1884).

The trial court disallowed the claim for the executor’s fee, stating that appellant had been discharged as executor “for violating his position and failing to properly perform and he never rightfully assumed the position of trustee. He is not entitled to a fee for failing to perform his duties as executor.” We defer to the trial court’s ruling on this factual finding of malfeasance and deem it to be supported by the evidence. This assignment of error is meritless.

Appellant also avers that the trial court should have awarded him a reimbursement from the Succession for his costs as executor of the Succession. IsCopies of checks totaling $7,554.40 representing expenses paid by appellant on behalf of the succession were presented to the court.

The trial court did not address this issue in its judgment. We find that the amount of $7,554.40 should be added to the succession’s liabilities. This assignment of error has merit.

Additionally, appellant contends that the trial court should have charged the attorney’s fees of the attorney of the executor, Marc Powell, against the Succession. Appellant further argues that the trial court should have charged the attorney’s fees of the attorney of the trustee, Maria I. O’Byrne Stephenson, against the Succession.

Attorney’s fees incurred by attorneys and executors in defending their performance against objections brought by heirs to succession were not chargeable as expenses to the succession, where costs incurred by the attorney and administrator benefited themselves and not the heirs or testator. Succession of Hirt, 612 So.2d 1054 (La.App. 4 Cir.1993). Where legal representation is primarily for the personal benefit of the executor and not performed exclusively for the benefit of the estate, the attorney’s fees may not be paid from the succession. Succession of Menendez, 160 So.2d 827 (La.App. 4 Cir.1964); Succession of Haydel, 606 So.2d 42 (La.App. 4 Cir.1992). If the executor has individual and special interests that he contests or defends, the succession is not responsible for the legal costs involved. Succession of Menendez, supra.

|sThe trial court disallowed these fees and costs, stating that the executor had been discharged from his duties for malfeasance. The court further found that “[h]e is no more than a co-owner claimant in these proceedings, and, as a litigant, is not legally entitled to attorney fees or expenses.” We find that this ruling is not erroneous. Under these particular circumstances where malfeasance has been found, and the executor has been removed, it would be illogical to pay the executor’s attorney’s fees from the heirs’ estate.

Finally, appellant avers that the trial court should have awarded Vazquez Enterprises, Inc. a reimbursement for monies advanced Ideal Homes, Inc. in the amount of $287,439.59.

The trial court disallowed this claim, holding, “The debt, if any, is prescribed by three-year prescription or, alternatively, any debt was not proved by credible, admissible evidence.” All of the alleged debts are prescribed by the three-year prescription for an action on money lent or on an open account, pursuant to La. C.C. art. 3494. The prescription commences to run from the day payment is exigible. La. C.C. art. 3495. There was no allegation of an interruption of prescription by acknowledgement, or any other means. As discussed above, the Civil Code prohibits the introduction of parol evidence to prove any acknowledgment or promise of a deceased party to pay any debt or liability, in order to take such debt or liability out of prescription, or to revive it after prescription has run or been completed. Sims v. Fogg, 183 So.2d 678 (La.App. 1 Cir.1966).

|10The amount of this claim is the total amount of approximately one hundred sixty checks written on the checking account of Vazquez Enterprises, Inc. between 1994 and 1997. The checks are signed by decedent and payable to various payees, both individuals and companies. Jose E. Vazquez said the decedent had authority to write checks on the business account. Neither the witness, Wally Ma-zur, nor appellant could identify the payees or what the checks were for. Most of the checks were to third parties or cash. Most were written by Jose A. Vazquez with the general permission of Jose E. Vazquez for him to write checks on the particular account. Jose E. Vazquez had no personal, independent knowledge of what the checks were for or to whom they were written. This is not credible evidence of a debt of the decedent. The trial court did not err. This assignment of error has no merit.

CONCLUSION

Accordingly, for the foregoing reasons, the judgment of the trial court is affirmed in part and reversed in part.

AFFIRMED IN PART; REVERSED IN PART.


author: JOAN BERNARD ARMSTRONG, Chief Judge.

text:
    Earl WOOLFOLK and Barbara Woolfolk v. TRISM, INC., Larry Finley, and United States Fidelity and Guaranty Association. Earl Woolfolk and Barbara Woolfolk v. Bill Watson Ford, Inc., National Union Fire Insurance Company of Pittsburgh and S. Coleman.
    Nos. 2007-CA-0749, 2007-CA-0750.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 16, 2008.

      A. Remy Fransen, Jr., Christopher J. Fransen, Fransen & Hardin, New Orleans, LA, for Plaintiff/Appellee, Earl Woolfolk.
    Paul A. Eckert, Bastían & Associates, New Orleans, LA, for Bill Watson Ford, Inc. and National Union Fire Insurance Company of Pittsburgh, PA.
    (Court composed of Chief Judge JOAN BERNARD ARMSTRONG, Judge PATRICIA RIVET MURRAY and Judge EDWIN A. LOMBARD).
   JOAN BERNARD ARMSTRONG, Chief Judge.

hThe defendants-appellants, Bill Watson Ford, Inc. and National Union Fire Insurance Company of Pittsburgh, PA, appeal a personal injury judgment signed on March 9, 2007, in favor of the plaintiff-appellee, Earl Woolfork in the total sum of $162, 737.00. We affirm.

This $162,737.00 was broken down in the judgment as follows: $38,000.00 for pain and suffering and mental anxiety; $18,744.00 for past medical expenses; $20,000.00 for future medical expenses; $60,993.00 for past lost income; $25,000.00 for loss of enjoyment of life. The defendants, contend that the plaintiff is not entitled to recover anything, but make no objection as to the specific amount of any of these awards.

The injuries plaintiff suffered were sustained when the plaintiffs vehicle was struck on October 13, 1998, by a vehicle owned by Bill Watson Ford and operated by Sharil Coleman. The Bill Watson vehicle was insured by Bill Watson’s co-defendant, National Union Fire Insurance Company of Pittsburgh, PA. These two co-defendants have taken a suspensive appeal jointly.

This is a fact intensive case and manifest error is the issue. Therefore, we look to the following pronouncement from Ambrose v. New Orleans Police Dept. Ambulance Service, 93-3099, pp. 8-9 (La.7/5/94), 639 So.2d 216, 220-221, for guidance:

In Arceneaux v. Domingue, 365 So.2d 1330 (La.1978), this Court held that the court of appeal should not upset the factual findings of a trial court absent manifest error or unless clearly wrong. A proper review, therefore, cannot be “completed by reading so much of the record as will reveal a reasonable factual basis for the finding in the trial court; there must be a further determination that the record established that the finding is not clearly wrong.” Id. at 1333. More recently, regarding this constitutional appellate review of fact in civil cases, La. Const. art. 5, § 10, we have had occasion to say in Youn v. Maritime Overseas Corp., 623 So.2d 1257 (La.1993), a case which involved the review of damages, that “the discretion vested in the trier of fact is ‘great,’ and even vast,” and in Stobart v. State, 617 So.2d 880, 882-83 [(]La.1993), which involved the standard of review of findings of fact, a “court of appeal may not set aside a trial court’s or a jury’s finding of fact in the absence of ‘manifest error’ or unless it is ‘clearly wrong,’ ” and “where two permissible views of the evidence exists, the factfinder’s choice between them cannot be manifestly erroneous or clearly wrong.” Id. In each of these cases there was but a perpetuation of the principle set down in Arceneaux. Notwithstanding the Court’s earlier guidance to reviewing courts in Stobart v. State through DOTD, 617 So.2d 880 (La.1993), it was not our purpose in that case to mandate that the trial court’s factual determinations cannot ever, or hardly ever, be upset. Although deference to the factfinder should be accorded, the court of appeal, and the Louisiana Supreme Court, nonetheless have a constitutional duty to review facts. [FN5 omitted.] Of course, the reviewing court may not merely decide if it would have found the facts of the case differently. Rather, notwithstanding the belief that they might have decided it differently, the court of appeal should affirm the trial court where the latter’s judgment is not clearly wrong or manifestly erroneous. Because the court of appeal has a constitutional function to perform, it has every right to determine whether the trial court verdict was clearly wrong based on the evidence, or clearly without evidentiary support.

Id.

|aThe reason for this well-settled principle of review is based not only upon the trial court’s better capacity to evaluate live witnesses (as compared with the appellate court’s access only to a cold record), but also upon the proper allocation of trial and appellate functions between the respective courts. Virgil v. American Guaranty and Liability Ins. Co., 507 So.2d 825 (La.1987); Canter v. Koehring Co., 283 So.2d 716, 724 (La.1973).

Applying these principles to the question of expert testimony, this Court stated recently that:

“[W]here the testimony of expert witnesses differ, it is the responsibility of the trier of fact to determine which evidence is the most credible.” Asbestos v. Bordelon, Inc., 96-0525 (La.App. 4 Cir. 10/21/98), 726 So.2d 926, 966. Those “[credibility determinations are subject to the strictest deference and the manifest error-clearly wrong standard demands great deference for the trier of fact’s findings.” Id. A fact-finder’s choice between two permissible views of the evidence cannot be manifestly erroneous or clearly wrong. Id. Thus, even if the testimony of both experts is considered credible, the trial court’s choice of Asher’s testimony over Boudreaux’s cannot be found to be manifestly erroneous or clearly wrong, and cannot be disturbed on appeal.

Brown v. Schwegmann, 05-0830, p. 7 (La.App. 4 Cir. 4/25/07), 958 So.2d 721, 725.

In addition to proceeding according to the precepts of the manifest error standard of review, we find that the plaintiff bears the burden of proof as to causation in this case. Maranto v. Goodyear Tire & Rubber Co., 94-2603, (La.2/20/95), 650 So.2d 757, 759. In a personal injury suit, the plaintiff bears the burden of proving a causal relationship between the injury sustained and the accident which caused the injury. Id. Plaintiff must prove causation by a preponderance of the evidence. Id. The test for determining the causal | relationship between the accident and subsequent injury is whether the plaintiff proved through medical testimony that it is more probable than not that the subsequent injuries were caused by the accident. Id.

A claimant’s disability is presumed to have resulted from an accident, if before the accident the injured person was in good health, but commencing with the accident the symptoms of the disabling condition appear and continuously manifest themselves afterwards, providing that the medical evidence shows there to be a reasonable possibility of causal connection between the accident and the disabling condition. Housley v. Cerise, 579 So.2d 973, 980 (La.1991) Whether an accident caused a person’s injuries is a question of fact which should not be reversed on appeal absent manifest error. Id., at 979.

The defendants do not challenge their responsibility for the Bill Watson vehicle. Their primary contention is that the plaintiffs injuries, if any, were the result of a prior auto accident which occurred almost exactly one year earlier on October 27, 1997, i.e., they were pre-exist-ing injuries. Plaintiffs claims that the 1997 accident were consolidated with his suit arising out of the 1998 accident, but the 1997 claims appear to have settled. For that reason this appeal is limited to consideration of plaintiffs claims arising out of the 1998 accident.

Plaintiff counters that the 1997 injuries resolved themselves prior to the occurrence of the 1998 accident and that the injuries he currently complains of all arise out of the 1998 accident. We agree with the defendants that, as a matter of law, the plaintiff is not entitled to collect from these defendants for pre-existing injuries. The plaintiff does not contend otherwise. More importantly to the outcome of this appeal, we agree with the plaintiff that he is entitled to | ¡^compensation for the aggravation of pre-existing injuries. The defendants do not dispute this legal principle.

All twelve of the jurors answered “yes” to the following interrogatory:

2. Was the negligence of the defendant, Sharil Coleman, employee of Bill Watson Ford, Inc., a legal cause of the injuries to Earl Woolfork.

Dr. Robert Ruel, who had been treating the plaintiff prior to the 1998 accident, testified that between July of 1998 and the occurrence of the accident on October 13, 1998, the plaintiff had been asymptomatic. When asked if the plaintiff had new complaints on October 13, 1998 relative to his neck, shoulder and left hip, he responded, “Yes.” The plaintiff testified that the 1998 accident occurred when the plaintiff was driving to keep an appointment with Dr. Ruel which he had scheduled in order to be cleared to go back to work as his symptoms from the 1997 accident had resolved themselves.

The plaintiff testified that immediately prior to the 1998 accident he experienced “a little stiffness from time to time,” but that he “really wasn’t having any problem with his neck.”

The plaintiff had an MRI done on September 10, 1998, approximately one month prior to the accident, which showed no L5-S1 herniation that would push against the left SI nerve root. A later MRI, done on June 29, 2005, shows such a herniation. This herniation could not be attributed to the 1997 accident or any other event occurring prior to September 10, 1998 MRI. It was Dr. Nutik’s opinion that the hermniation could have been caused by a 1984 work related accident.

The defendants admit in brief that the plaintiffs pre-existing cervical and lumbar conditions “were exacerbated by the October, 1997 automobile accident.” | fiThe defendants’ also state in their brief that: “According to Dr. Ruel, the subsequent October 13, 1998 automobile accident aggravated his condition.” However, the defendants take the position that the jury was manifestly erroneous in finding that the plaintiffs injuries were the result of the 1998 accident. The defendants contend that it is impossible to determine to what extent the plaintiffs condition is attributable to aggravation of pre-existing injuries versus how much is attributable to the pre-existing injuries alone. The plaintiff counters that the jury accepted Dr. Ruel’s conclusions as to causation as they were entitled to do. We agree with the plaintiff. After reviewing the record as a whole we find that the record supports the jury’s finding in favor of the plaintiff as to causation.

The defendants also contend that the award of $60,993.00 for past lost income was manifestly erroneous. The plaintiff eventually went back to work after the 1998 accident, but only in a diminished capacity. He was no longer a “beat cop.” Instead, he specialized in the identi-fieation of stolen vehicles. He testified that eventually, in January of 2005, his pain had reached a level where he had to give up work entirely, in spite of being the type of person who liked to work in general and who particularly liked the kind of work in which he was engaged.

His claim for past lost wages is based on a claim for reimbursement for annual leave and sick time which he had to use in order to supplement his compensation which had been reduced because of inability to work at full capacity as a result of the 1998 accident. The defendants do not contest this theory of recovery, but they argue that the plaintiff failed to prove that his use of the annual leave and sick time was attributable to the 1998 accident.

The defendants note that the plaintiff had not yet returned to work following the 1997 accident at the time the 1998 accident occurred; that he could not recall |7when he returned to work.; that the plaintiffs physician, Dr. Ruel, did not specify whether the plaintiffs absences are the result of either automobile accident; and that Dr. Ruel never testified that Dr. Woolfolk’s inabililty to return to work was the direct result of the 1998 accident.

In order to be entitled to an award for lost wages, a plaintiff must prove positively that he would have been earning the wages but for the accident in question. Falgout v. Louis-Jeune, 00-2452, pp. 10-11 (La.App. 4 Cir. 10/3/01), 799 So.2d 610, 617, citing Boyette v. United Services Automobile Asso., 00-1918, p. 3 (La.04/03/01) 783 So.2d 1276, 1279. With respect to past wages, the plaintiff bears the burden of proving the amount of the lost wages and the amount of time missed from work as a result of the accident. Stark v. National Tea Co., 94-2633, p. 7 (La.App. 4 Cir. 5/16/95), 655 So.2d 769, 774-775, citing Thibodeaux v. USAA Cas. Ins. Co., 93-2238, p. 14 (La.App. 1st Cir.11/10/94), 647 So.2d 351, 360. Past lost earnings are susceptible of mathematical calculation from proof offered at trial, and an award for this element of damages is not subject to the much discretion rule. Stark, supra. However, for purposes of determining this type of damages, the amount of lost earnings need not be proved with mathematical certainty, but by such proof as reasonably establishes the claim. Lewis v. State Farm Ins. Co., 41,527, p. 17 (La.App. 2 Cir. 12/27/06), 946 So.2d 708, 722.

The plaintiffs claim in this regard was supported by the testimony of his expert forensic economist, Shael Wolfson. His testimony was based on correspondence from Janice Roussel, the personnel director of the City of New Orleans, Department of Police, detailing the number of hours of sick and annual leave time lost. Mr. Wolfson also made use of documentation supplied by |RStephanie Landry, another personnel director at the NOPD regarding plaintiffs wages over the years and total sick and annual leave from June 4,1999, until trial.

Dr. Ruel opined that the plaintiff could not go back to active police work in the sense of being a “beat cop” or an “auto cop.” When the defendants cross-examined the plaintiff, they did not raise the issue of the relationship between the 1998 accident and the plaintiffs ability to work. We find that there is sufficient evidence in the record from which the jury could reasonably infer that the plaintiffs inability to return to work was related to the 1998 accident. Accordingly, we find no error in the award for past lost wages.

In their final assignment of error, the defendants complain that the jury was manifestly erroneous in granting the defendant an award of $25,000.00 for loss of enjoyment of life based on the contention that the plaintiff never testified that he could do the activities that gave him enjoyment following the 1997 accident. In other words, the defendants argue that the plaintiff failed to prove that he was not already disabled from doing the activities he enjoyed as a result of the 1997 accident and that his loss of enjoyment cannot, therefore, be attributed to the 1998 accident. An award for loss of enjoyment of life requires showing that the plaintiffs lifestyle was detrimentally altered or that the plaintiff had to give up activities because of the injury. Lewis, supra, 41,527, p. 20, 946 So.2d at 723.

The defendant testified that he used to fish and work out regularly which he could no longer do. The plaintiff was asked:

Q: What affect [have] your disabilities and your complaints of pain since '98, what effect has that had on your life in general? You know what I’m talking about? Just day-to-day, can you tell us about that?
19A: It’s like I said, my hobby is working out. I like exercise and this is one of the things I look forward to. There [was] a point in time that I would work out every day but it diminished down to Monday, Wednesday and Friday ... It got to the point where it was a struggle. I couldn’t do that anymore so — I don’t smoke. I don’t drink. I don’t go to night clubs, and I got a lot of enjoyment out of doing that, and from time to time, I used to fish and I don’t do that anymore because you’re sitting in one place like that and it wasn’t any enjoyment out of that at all. As far as my, from a recreational standpoint, that has totally diminished. There’s nothing there anymore with that.

In the context of the record as a whole, a jury could easily and reasonably infer that the plaintiff is referring to changes that occurred as a result of the 1998 accident, because in making the finding attributing the cause of plaintiffs injuries to the 1998 accident, the jury, in effect, is saying that they believe the plaintiff and Dr. Ruel that plaintiffs pre-1998 accident symptoms had resolved themselves prior to the 1998 accident. Therefore, the pre-1998 accident injuries could reasonably be assumed not to be the cause of the plaintiff having to give up the life activities he enjoyed so much. It follows that the only reasonable conclusion to draw based on the record as a whole is that his loss of enjoyment of life is attributable to the 1998 accident.

For the foregoing reasons, the judgment of the trial court is affirmed, and the defendants shall bear the costs of this appeal.

AFFIRMED.

      . The defendants object to the award for loss of enjoyment of life per se, but do not challenge the amount of the award.


author: JAMES F. McKAY III, Judge.

text:
    STATE of Louisiana v. Major DRIGHT.
    No. 2007-KA-0875.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 16, 2008.
    Eddie J. Jordan, Jr., District Attorney of Orleans Parish, David S. Pipes, Assistant District Attorney of Orleans Parish, New Orleans, LA, for Appellant.
    Mary Constance Hanes, Louisiana Appellate Project, New Orleans, LA, for Defendant/Appellee.
    Court composed of Judge JAMES F. McKAY III, Judge MICHAEL E. KIRBY, Judge MAX N. TOBIAS, JR.
   JAMES F. McKAY III, Judge.

11 STATEMENT OF CASE

On March 1, 2004, the State charged Major Dright with one count of second degree cruelty to a juvenile. At his arraignment on March 25, 2004, he pled not guilty. The court set a motion hearing for May 4, 2004, and on that date the State obtained a continuance to May 20, 2004. On May 20, 2004, the defense waived motions, and the court set trial for July 27, 2004. The State obtained a continuance of the trial to September 28, 2004, and on that date the court continued the trial to November 15, 2004, on joint motion. Major Dright did not appear on November 15, 2004, and the court set a status hearing for December 16, 2004. On that date, Major Dright and his counsel appeared, and the court set trial for March 10, 2005. The State obtained a continuance of the trial on that date to May 12, 2005, over the defense objection. On May 12, 2005 the court on its own motion reset trial to June 15, 2005, due to another trial in progress. On June 15, 2005, the State obtained another continuance to August 17, 2005. On August 17, 2005, the State obtained another continuance, again over the defense objection, and the court set trial for September 21, 2005.

|2In the wake of Hurricane Katrina, the State filed a set sheet on January 22, 2007. The court set the matter for February 1, 2007, with notices to go to both Major Dright and his attorney. They both appeared on February 1, 2007, and the court set trial for April 12, 2007. On April 12, 2007, Major Dright did not appear, but trial was continued to May 15, 2007, because for some unclear reason it could not be held that day. On May 15, 2007, the court again granted the State a continuance, and the defense objected and filed a motion to quash the bill of information. The court set the hearing on the motion for May 18, 2007, and on that date the matter was heard, and the State obtained a continuance to May 21, 2007, to allow it to respond in writing to the motion. The court granted the State’s motion for eon-tinuance that day. The State filed its motion to appeal the trial court’s ruling that granted the motion to quash and set a status hearing for June 1, 2007. On June 1, 2007, the State withdrew its intent to seek an appeal, but on June 20, 2007, it filed another motion for appeal, which the court granted.

FACTS

Because the defense waived any motions and the case never went to trial, the facts of the case are unknown. The bill of information alleges that the defendant scalded a five-month-old child in hot water. In any event, the facts of the case have no bearing on the assignment of error raised by the State.

DISCUSSION

By its sole assignment of error, the State contends that the trial court erred by granting the motion to quash the bill of information. It acknowledges that more than two years elapsed from the filing of the bill of information to the date that the Iscourt granted the motion to quash, and it acknowledges that most of the continuances in this case were granted to the State. Nonetheless, it asserts that the intervention of Hurricane Katrina interrupted the time limitations, and because less than two years elapsed from the beginning of this interruption, the trial court erred by quashing the bill of information.

As per La.C.Cr.P. art. 578 A(2), the State had two years from the filing of the bill of information in which to bring the defendant to trial. This time period may be suspended by the filing by the defendant of any “preliminary plea” until the court rules on the plea, but in any case the State has no less than one year from the ruling in which to bring the defendant to trial. La.C.Cr.P. art. 580. As per La. C.Cr.P. art. 579, this time period may also be interrupted, in which case the time limitations of art. 578 begin to run anew once the cause of the interruption ceases to exist. In State v. Brazile, 2006-1611 (La.App. 4 Cir. 5/30/07), 960 So.2d 333, this court held that Hurricane Katrina fell within the provisions of art. 579 A(2), which states in part that the time limitations of art. 578 shall be interrupted if the defendant cannot be tried “for any other cause beyond the control of the state.” This Court stated:

This Court acknowledges that the State was prevented from trying Mr. Brazile on September 19, 2005 and for some time thereafter while the court was not in operation due to Hurricane Katrina. An application of article 579 allows for the two-year limitation period imposed by article 578 to commence anew once the causes preventing the State from trying the defendant were removed and the court reconvened. This court need not determine exactly when this occurred as the motion to quash was granted after only a little more than one year had elapsed since Hurricane Katrina struck the Gulf Coast. At that point, the State still had at least a year in which to commence trial. Although the renewal of the entire two-year period could be construed as extremely prejudicial to the defendant, the | constitutionality of article 579 was not raised in this matter and therefore is not currently before this court. As a court of review, we are restricted by the contents of the record. Thus, this Court must determine that the trial court erred in granting defendant’s motion to quash.

Id. at pp. 4-5, 960 So.2d at 335-336. Although this Court noted that some of the original two-year limitation period had been suspended by various “preliminary pleas” by the defendant, including a joint continuance, it found that it need not calculate these periods of suspension because the advent of Hurricane Katrina provided an interruption of the time limitation of art. 578. See also State v. Hamilton, 2007-0582 (La.App. 4 Cir. 11/28/07), 973 So.2d 110.

Here, the State filed the bill of information in this case on March 1, 2004. The last date the case was heard prior to the storm was August 17, 2005, when the State obtained a continuance of the trial to September 21, 2005. At that point, even if the defense had not moved for a joint continuance or had not failed to appear in November 2004, the two-year limitation had not yet run. Hurricane Katrina hit the city on August 29, 2005. Although Brazile is silent as to the date upon which the interruption caused by the storm ceased to exist, the motion to quash in this case was filed on May 15, 2007 and granted on May 21, 2007, less than two years from the date of the storm and the beginning of the interruption. Thus, as per Brazile, the time limitations of art. 578 had not yet elapsed at the time the court quashed the bill, and the trial court erred by so doing. In addition, as in Brazile, here the defendant did not challenge the constitutionality of art. 579. Indeed, the motion to |fiquash alleges only that the bill should be quashed because the time limitation of art. 578 had been exceeded.

The State’s assignment of error has merit. Accordingly, we reverse the trial court’s ruling that quashed the bill of information and remand the case for further proceedings.

REVERSED AND REMANDED.

      . Although the State withdrew its first motion for appeal, it filed its second motion within thirty days of the trial court’s ruling. Thus, the State did not lose its right to appeal the trial court’s ruling. See La.C.Cr.P. art. 914.

      . The defense has filed a writ in the Supreme Court from this Court's ruling, and the writ is pending in that court. State v. Brazile, 2007-K-1339, filed 6/29/07.


author: MAX N. TOBIAS, JR., Judge.

text:
    STATE of Louisiana v. Shawn KENNISTON.
    No. 2007-KA-0849.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 16, 2008.
    Eddie J. Jordan, Jr., District Attorney, Graham L. Bosworth, Assistant District Attorney, New Orleans, LA, for State of Louisiana, Appellee.
    Christopher A. Aberle, Louisiana Appellate Project, Mandeville, LA, for Shawn Kenniston, Appellant.
    (Court composed of Judge JAMES F. McKAY, III, Judge MICHAEL E. KIRBY, Judge MAX N. TOBIAS, JR.)
   MAX N. TOBIAS, JR., Judge.

|TOn 1 July 2004, the state filed a bill of information charging the defendant/ appellant, Shawn Kenniston (“Kenniston”), with one count of violating La. R.S. 14:202 relative to misapplication of funds received by a contractor and intended for payment of materials and labor. He was arraigned and entered a not guilty plea on 30 July 2004. The court set a diversion review hearing for 26 August 2004. At the diversion hearing, Kenniston appeared and changed his plea to guilty as charged. He waived sentencing delays, and the court sentenced him to four years at hard labor. The court then suspended that sentence and placed him on probation for four years. The court imposed specific conditions, including that Kenniston pay restitution to the victim in the amount of $20,000.00 and fines and fees of $750.00 to the Judicial Expense Fund at Criminal District Court, $100.00 to the Indigent Defender Program, and court costs of $190.50. A payment status hearing was set for 20 September 2004.

When Kenniston appeared, the court granted an extension until 15 October 2004, but he failed to appear on the 15th. The court issued an alias capias for his arrest. Kenniston subsequently appeared on 4 February 2005 at which time the court recalled the capias. He paid $600.00, but failed to appear at the next 12payment status hearing, set for 18 March 2005. The court issued another capias for his arrest.

In September 2006 the state filed a motion and order to revoke Kenniston’s probation. The court set a hearing on the motion for 13 October 2006, directing further that notices be given to the defendant both in person and by U.S. mail. On October 13, Kenniston appeared for a hearing on the rule to show cause. The court revoked his probation and ordered that the original four-year sentence be made executory. On 17 November 2006, Kenniston through counsel filed a written motion to reconsider the sentence, which the court set for hearing on 19 January 2007. The hearing was subsequently reset, and on 23 January 2007 the state filed a written response to the motion. On 5 March 2007, the court denied the motion to reconsider sentence. On 9 March 2007 Kenniston filed a motion for an appeal, which the court granted.

STATEMENT OF THE FACTS

Because the defendant entered a guilty plea, no trial transcript exists from which the facts can be gleaned. Furthermore, because this appeal is from the denial of the motion to reconsider the sentence, the facts are not critical to a review of the issue presented. We note that the record contains a copy of the arrest warrant issued for Kenniston in which the underlying facts are recited.

Kenniston was hired in April 2003 to perform repairs to a home owned by Ms. Cora Shy. He began the job, although little progress was evident. He requested money from Ms. Shy to purchase materials and to reimburse him for materials he allegedly had already purchased. Over time, Kenniston presented Ms. Shy with several invoices purportedly issued by Home Depot; she gave him money to pay the invoices, which were later discovered in the police investigation to be ^quotes for materials, not invoices. When Ms. Shy inquired about where the purchased materials were, Kenniston told her that he was storing the materials at his residence in Mississippi. Overall, Ms. Shy gave Kenni-ston a total of twelve checks amounting to $20,600.00.

In August 2003, Kenniston failed to return to Ms. Shy’s house to perform work as scheduled. When she contacted him, he claimed that he had been ill. Thereafter, all of her attempts to contact him were unsuccessful, and he never returned to Ms. Shy’s property. Ms. Shy notified the police, and the investigation by Detective Martin resulted in the warrant for Kenni-ston’s arrest being issued on 28 April 2004.

DISCUSSION

Before addressing the merits of the assignment of error raised by the appellant, we note procedural issues. The first issue is whether the judgment at issue is appeal-able. In its caption, the pleading which the court denied was identified as a motion to reconsider the sentence. The sentence that Kenniston wished reconsidered was the sentence which was made executory upon the revocation of his probation. However, Louisiana courts have consistently held that no appeal lies from the revocation of probation; instead direct review is only by the court’s supervisory jurisdiction. See State ex rel. Clavelle, 02-1244 (La.12/12/03), 861 So.2d 186 , State v. Allen, 00-1859, p. 13 (La.App. 4 Cir. 5/9/01), 794 So.2d 25, 32; State v. Oswald, 41,737 (La.App. 2 Cir. 8/31/05), 936 So.2d 319; State v. Franks, 04-1208 (La.App. 5 Cir. 4/26/05), 902 So.2d 450. When a defendant seeks relief from a probation revocation by an appeal, this court has treated the appeal as an application for supervisory review. State v. Allen, supra. However, the Louisiana Fifth Circuit Court of Appeal has decided not to convert an improperly filed appeal into a supervisory writ. State v. Franks, p. 3, 902 So.2d at 451. In Franks the state was the appellant and was seeking reversal of the trial court’s decision to reduce the defendant’s term of imprisonment at the time of the probation revocation. The state argued that the trial court lacked authority to amend the original sentence imposed but suspended. The court dismissed the state’s appeal, but ordered that the state be granted thirty days in which to file an application for a supervisory writ of review.

In contrast to the policy of the Fifth Circuit, this court as a matter of judicial efficiency converts an appeal from a probation revocation to a supervisory writ. See Allen and Dorset. Converting this appeal to a supervisory writ does not end the inquiry into procedural issues in this case, however. The next issue is whether the motion to reconsider the sentence that Kenniston filed was timely filed.

The record establishes that the written motion to reconsider was filed on 27 November 2006. The minute entries fail to show that an oral motion to reconsider was made. Instead, the 13 October 2006 minute entry states that, after the court revoked Kenniston’s probation and made the original sentence executory, a “motion to correct illegal sent [sic] in this matter is set for 10/27/06.” The record next reflects that on 27 October 2006 defense counsel appeared without the defendant, “for motion to correct illegal sent [sic];” the court then continued the matter without date. Thus, as of 27 October 2006, we find neither a motion to | ¿reconsider sentence nor a motion to correct an illegal sentence had been filed or made, either orally or in writing. If one or both had been filed or made, it would have been inappropriate for the court to have continued the matter without date. It appears therefore that, instead of orally making any motions at the time of the probation revocation, defense counsel merely indicated that he intended to file a motion to correct an illegal sentence at a future date. However, no motion to correct an illegal sentence was ever filed into the record. Instead, on 27 November 2006 defense counsel filed a written motion to reconsider the sentence.

La.C.Cr.P. art. 881.1 requires a defendant or the state to file a motion to reconsider sentence within thirty days of sentencing unless the trial court sets a longer period of time at the time of sentencing. Here, the original sentence was imposed on 26 August 2004. Kenniston’s probation was revoked and his original sentence of four years of imprisonment was made ex-ecutory on 13 October 2006. The written motion to reconsider sentence, which was filed on 27 November 2006 was not filed within thirty days of either of these dates. Thus, even assuming that the court’s action of making the sentence executory provided a second opportunity for Kenniston to file a motion to reconsider sentence, he failed to comply with La. C.Cr.P. art. 881.1.

We note that La.C.Cr.P. art. 881.5 permits a trial court at any time to correct a sentence that exceeds the maximum sentence authorized by law. The court may do so upon its own motion or upon the motion of either of the parties. However, the four-year sentence imposed upon Ken-niston does not exceed the | (¡maximum permitted for the substantive offense; La. R.S. 14:202(C) sets a maximum term of five years.

Kenniston frames his argument in the language of a sentence exceeding the statutory maximum; however, that argument is predicated solely upon the fact that the bill of information failed to allege any amount of misapplied funds. Pursuant to La.C.Cr.P. art. 470, the failure of the state to allege any amount in the bill of information renders the bill defective. However, it does not render Kenniston’s sentence of less than five years illegal as his sentence is still below the maximum permitted by La. R.S. 14:202. To the extent that Kenniston’s assignment of error is based upon the trial court’s denial of a motion to reconsider sentence, Kenniston’s motion was not preserved for review because the motion was untimely filed, according to the record on appeal.

In any event, even if we were to assume that the issue of the defective bill of information was properly preserved by the untimely filing of the motion to reconsider sentence, Kenniston is not entitled to relief. He relies upon State v. Olivier, 03-1589 (La.App. 3 Cir. 6/16/04), 879 So.2d 286, in which the court held, in a review of the record for errors patent, that the failure to allege the amount of misapplied funds in the bill of information rendered the bill defective. In support of its ruling, the court relied upon cases involving theft and simple criminal damage to property, as the penalties for those offenses also were |7dependent upon value. The court then set aside the defendant’s conviction and sentence, which followed a jury trial, and remanded the case with the specific order that the state be allowed the opportunity to amend the bill to properly charge an offense. Olivier; p. 3, 879 So.2d at 288.

In contrast to Olivier, the First Circuit Court of Appeal held that the failure to allege the value of the property damaged in a bill of information charging a violation of the graded offense of simple arson, La. R.S. 14:52, did not require reversal of the defendant’s guilty plea. State v. Guidry, 93-1091 (La.App. 1 Cir. 4/8/94), 635 So.2d 731. As is true in the instant case, Kenni-ston was advised of the sentencing range both by the judge in the Boykin examination and in writing in the waiver of rights form. He did not allege that he did not understand the nature of the charge. Further in Guidry, the penalty imposed was appropriate for either grade of the offense. Thus, the court found that any error was harmless under the facts of the case.

A review of the guilty plea transcript filed in the record of this case shows that the proceeding originally set for the day that Kenniston pled guilty was a hearing regarding the diversionary program to which he had been referred. Defense counsel explained to the court that his client had applied to the program but did not qualify because of the amount of money at issue. Counsel informed the court:

We’re talking about $20,000. At this time on behalf of Mr. Kenniston, we’d like to withdraw our former plea of not guilty and tender to the Court a plea of guilty as charged under Title 14 202[sic], relative to Misapplication of Contract Payments.

|sIn addition to the specific admission to the court of the amount of misapplied funds at the same time the plea was entered, Kenniston acknowledged that he understood that he could receive “up to five years in the Department of Corrections?” The waiver of rights form signed by Ken-niston also reflects that he understood that the maximum sentence was five years. When the court imposed the sentence of four years, suspended, and ordered Kenni-ston to pay restitution in the amount of $20,000.00, no objection was made by the defense. Notably, La. R.S. 14:202 D specifically provides that a defendant-contractor convicted of misapplying payments shall pay restitution in “an amount equal to the sum of the payments not properly applied....” Thus, the sentence imposed, the amount of restitution, and the amount which the defense acknowledged in open court had been received and misapplied by Kenniston, were in accord with each other. Thus, we find from our review of the entire record that the failure to include the dollar amount in the bill of information did not prejudice Kenniston; furthermore he has never alleged that his guilty plea was not intelligently entered.

Finally, La.C.Cr.P. art. 487 B provides that a defendant is not prohibited from “entering a plea of guilty to a crime nonre-sponsive to the original indictment when such a plea is guilty is acceptable to the district attorney,.... ” Although Kenniston argues that his plea of guilty should not be construed as a plea to [ smisapplication of funds in the amount of $20,000.00, the plea colloquy leads us to the inescapable conclusion that he knowingly and without objection entered a plea to a felony grade of the offense for which the maximum sentence was five years at hard labor. Furthermore, he made no attempt to challenge his plea, nor did he challenge his sentence until after his probation was revoked and made executory. Although he argues that a defect in the bill is non-waivable because it is a jurisdictional defect, absent prejudice a defective bill will not entitle a defendant, who enters a voluntary and knowing plea, to relief. State v. Guidry, supra; La.C.Cr.P. art. 912.

CONCLUSION

For the foregoing reasons, we covert Kenniston’s appeal to an application for supervisory writs. We grant that writ application and affirm Kenniston’s conviction and sentence.

APPEAL CONVERTED TO WRIT; WRIT GRANTED; AFFIRMED.

      . In Clavelle, the Court acknowledged that an application for post-conviction relief may be used as a collateral method for asserting a claim relating to revocation of probation. However, because an application for post-conviction relief cannot be used to assert a sentencing claim, see State ex rel. Melinie v. State, 93-1380 (La.1/12/96), 665 So.2d 1172, it arguably would be of no use to Kenniston in the case at bar wherein, on the face of the assignment of error, he seeks reversal of a motion to reconsider the sentence.

      . Again, it should be emphasized that the court had continued the matter on October 27 without date. Therefore, defense counsel’s appearance on November 27 was unscheduled and for the purpose of filing a written motion in open court. The entry of November 27 also notes that the defendant’s presence was not required, although counsel waived his presence.

      . La.C:Cr.P. art. 470 states in its entirety that, "Value, price, or amount of damage need not be alleged in the indictment, unless such allegation is essential to charge or determine the grade of the offense.”

      .If the amount of misapplied funds had been $1,000.00 or less, then the maximum sentence would have been six months imprisonment. La. R.S. 14:202 B. If the amount had been more than $1,000.00, then the sentencing range is ninety days to six months imprisonment with or without hard labor for each $1,000.00 in misapplied funds, “provided that the aggregate imprisonment shall not exceed five years.” La. R.S. 14:202 C.

      . The waiver of rights form also indicates that Kenniston was informed of the specific sentence he would receive; however, the writing is illegible.

      . Another procedural bar to the substantive claim made in this matter is Kenniston's failure to file an application for post-conviction relief within two years of his conviction as required by La.C.Cr.P. art. 930.8. An application for post-conviction relief would have been the appropriate vehicle in which to attack the guilty plea and conviction on the basis that the plea was not knowingly entered or that a defect in the bill of information existed which resulted in a denial of his right to due process; a motion to reconsider sentence is not the appropriate pleading in which to do so. Furthermore, the defense should have raised the defect in the bill prior to the plea in the form of a motion to quash so that the court could have ordered an amendment, as permitted by La.C.Cr.P. art. 487, or he could have filed a motion for a bill of particulars.