author: CLARENCE E. McMANUS, Judge.

text:
    Barry BADEAUX v. Warren L. SAVOIE, Jr.
    No. 07-CA-224.
    Court of Appeal of Louisiana, Fifth Circuit.
    Oct. 30, 2007.

      Michael S. Weinberg, Attorney at Law, Destrehan, LA, for Plaintiff/Appellee-2nd Appellant.
    Mark A. Marino, Attorney at Law, Des-trehan, LA, for Defendant/Appellant.
    Panel composed of Judges MARION F. EDWARDS, CLARENCE E. McMANUS, and GREG G. GUIDRY.
   CLARENCE E. McMANUS, Judge.

| ^Plaintiff, Barry Badeaux, filed a petition for damages and breach of contract, alleging that he and defendant, Warren Savoie, entered into a lease agreement with and option to purchase, and that defendant breached the agreement by selling the property to someone else. After trial on the merits, the court rendered judgment in favor of plaintiff, awarding damages of $19,200.00 plus interest and costs. All other relief was denied. Both parties have appealed from that judgment.

On August 11,1993, Badeaux and Savoie entered into an agreement for the lease of property. The agreement, provided by Savoie, was a typewritten rental agreement which provided for monthly rental payments of $575.00 with a reduction of $25.00 for timely payments. Savoie also included handwritten terms at the bottom of the first page that provided:

* House will be removed from the sales market during term of this lease.
* Lessee may purchase at any time. All rent applied to purchase. (10/06 + $4,000.00 Approx.)

The original term of the lease was from July 17, 1993 to August 1,1994. The lease also provided for “Automatic renewal on a month to month basis at the expiration of this contract allowing then either the Lessor or Lessee to void with a 30 day written notice.”

13Badeaux and Main took occupancy of the residence. After the expiration of the original term, no new agreement was made. They continued to make timely monthly payments to Savoie until March of 2005. On the bottom of each payment, it was noted that the payment was for “house note.” On March 16th, Badeaux received a letter notifying him to make his payments to a third party, Wilton and Courtnie Comardelle. On April 25, 2005, Badeaux sent Savoie a letter stating that he wanted to purchase the property in accordance with their lease agreement.

During that time, Badeaux discovered that Savoie had sold the property to the Comardelles. He testified that he was not given notice, nor was he provided the opportunity to exercise the option to purchase prior to the sale. At the time of the sale, Badeaux had paid in excess of $70,000.00 to Savoie. Badeaux received a notice to vacate the premises from the Comardelles in April of 2005, and was served with a Petition of Eviction on May 5, 2005.

Rachael Main testified that she cohabita-ted with plaintiff, and had done so for the previous 14 years. She resided with the plaintiff at the subject property. She stated that Savoie offered them the option of “rent to own,” and that he provided the contract that they entered into. She further testified that she and plaintiff requested that he include the addendum that the payments would finish in October of 2006, with the payment of an additional $4,000.00, and Savoie made the handwritten notation on the bottom of the contract. Thereafter, they occupied the premises and made the required monthly payments. She further testified that they stayed in the house past the 1994 term, and there was never a new agreement executed between them.

Ms. Main testified that from August of 1991 until September of 1995, they made timely monthly payments of $550.00. In September of 1995, the taxes on the property increased, and they began to pay an additional $25.00 per month for the |4tax. She also testified that she and Mr. Ba-deaux made some repairs to the property, and that Mr. Savoie also made repairs, including replacing the air conditioner and the roof. She further said that at one point, she and Badeaux changed the locks on the property. Mr. Savoie was not given a key to the new locks.

Barry Badeaux testified that he and Sa-voie discussed the possibility of a lease purchase (rent to own) and that Savoie prepared the contract of their agreement. Savoie indicated that Badeaux would take over the house payment, which would be concluded in October of 2006. Thereafter, and after making an additional payment of $4,000.00, Badeaux would own the property. Savoie wrote the notation on the first page, representing their agreement. The agreement was orally modified twice, at the request of Savoie, first to include an extra $25.00 payment toward property tax, and second to request that payment be made on the 25th of the month instead of the following 1st, so that Savoie could make his payments timely. Badeaux testified that he did not receive any written notice from Savoie prior to the sale to the Co-mardelles.

Badeaux also testified that at the time he initially entered into the agreement with Savoie, comparable properties rented for approximately $850.00, but he paid more in exchange for what he believed was an ownership option.

Mr. Savoie testified that he originally purchased the property for $54,000.00 in 1981. In 1991, he placed an ad in the paper to sell or lease the property. He stated that he requested rent of $525.00, although he admitted that other properties were renting for $800.00. He stated that Badeaux paid $550.00 monthly because he was consistently late in his payments.

He further testified that he offered to sell the property several times, but was told that Badeaux could not come up with the balance. He sold the property to the | RComardelles for $26,000.00. He further testified that the rent increase of $25.00 in 1995 was not to pay taxes, but was a penalty because Badeaux’s rent payments were late “a couple of times.” Other than that increase, he never raised the rent in the twelve years that Badeaux occupied the property.

Savoie testified that his monthly mortgage note on the property at the time he rented it was $511.00. He further stated that the lease agreement between he and Badeaux provided for an option to buy for the first year only, and after it was strictly a lease. He agreed that this one year limitation was not present on the document, but stated that he had discussed those terms with Badeaux. He admitted that he had several discussions with Ba-deaux concerning the purchase of the property. He further admitted that he had seen the notation “house note” on the payments, but considered that was a notation for rent. His intention on the written language was that it was a notation that his mortgage on the property would be paid in October of 2006, and that should Badeaux want to purchase the property at that time, it would cost no more than $4,000.00. Savoie testified that he notified Badeaux that he was going to sell the property via telephone, and that Badeaux indicated that he did not like the idea because they had an agreement to rent, and that Badeaux never stated that he thought he was purchasing the property. However, in his deposition of April 5, 2006, Savoie stated that “... he wasn’t pleased that I was going to sell the property and he assumed that we had an agreement for him to purchase it the whole time.”

In this appeal, Savoie contends that the trial court erred in finding that the agreement was a lease with an option to purchase. Badeaux argues that the trial court correctly found that the agreement contained an option to buy, but argues that the award of damages was erroneous.

| (¡Initially we note, as did the trial judge, that it is undisputed that Savoie provided all of the language in the agreement. Accordingly, any ambiguous language is to be interpreted against him, and in favor of the other party, Badeaux.

LSA-C.C. art. 2620 sets forth the requirements for such an agreement:

An option to buy, or an option to sell, is a contract whereby a party gives to another the right to accept an offer to sell, or to buy, a thing within a stipulated time.
An option must set forth the thing and the price, and meet the formal requirements of the sale it contemplates.

The trial judge evaluated the evidence presented and first found that the “thing” contemplated in the agreement was the mobile home and lot located at 124 Julia Street. He further found that Savoie gave Badeaux until October, 2006 to exercise his option to purchase.

The court also found that the parties reached an agreement as to the price for purchase, that being monthly payments of $575.00 (with a monthly discount of $25.00 for timely payments) from August 1, 1993 to October 2006, and an additional payment of $4000.00 in October, 2006. If the option had reached its term, applying the $25.00 on time discount to each payment and discounting the $25.00 increase for property taxes, the total amount paid would have been $81,950.00. After adding the $4000.00 lump sum due in October of 2006, the total purchase price was $85,950.00.

Finally, the court found that the agreement met a formality requirement for a sale of immovable property, namely an act under private signature.

After review of the record, we cannot say that the trial court erred in its findings, and thus we find that the trial court did not err in finding that the lessee agreement between the parties contained an option to purchase, and that Mr. Savoie breached that contract by selling the property to the Comadelles.

|7Badeaux’s appeal challenges the award of damages given by the trial court. It is his contention that the trial court erred in giving credit for the fair rental value of the property and also in giving credit for the improvements made by Sa-voie, which were improvements incurred in connection with the maintenance of the property by the property owner. Badeaux did not become the property owner, and therefore should not be assessed with the cost of the improvements as a “penalty.”

We find no error in the trial court’s ruling awarding Savoie a credit for the fair rental value of the property.

We do find that the trial court erred in granting credit for the cost of replacing the roof and air conditioning system. We agree with Mr. Badeaux’s assertion that these are expenses associated with the ownership of the property, and he never acquired that ownership. Furthermore, the lease agreement states that “If the residence is damaged beyond normal wear and tear or due to direct action or neglect on the part of the Lessee, Lessee shall be responsible for the costs of the repair.” There was no evidence offered to show that the roof and air conditioner were replaced because of damage beyond normal wear and tear, or that Badeaux and/or Main either caused the damage or allowed it to happen due to neglect. Accordingly, we find that the trial court erred in granting to Mr. Savoie a credit of $9,000.00 ($6,000.00 for roof replacement and $3,000.00 for air conditioner replacement).

For the above discussed reasons, the judgment of the trial court is amended to increase the award to plaintiff, Barry Ba-deaux, from $19,200.00 to $28,200.00. In all other respects, the judgment of the trial court is affirmed. All costs are assessed against defendant/appellant.

AMENDED AND AFFIRMED.


source: Caselaw Access Project

author: SUSAN M. CHEHARDY, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Robert WILLIAMS.
    No. 07-KA-354.
    Court of Appeal of Louisiana, Fifth Circuit.
    Oct. 30, 2007.

      Paul D, Connick, Jr., District Attorney, Terry Boudreaux, Thomas J. Butler — Appellate Counsel, Laura S. Schneidau — Trial Counsel, Assistant District Attorneys, Twenty-Fourth Judicial District, Parish of Jefferson, Gretna, Louisiana, for Appellee, State of Louisiana.
    Martin E. Regan, Jr., Karla M. Baker, Attorneys at Law, New Orleans, Louisiana, for Appellant, Robert Williams.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., SUSAN M. CHEHARDY, and CLARENCE E. McMANUS.
   SUSAN M. CHEHARDY, Judge.

pOn July 21, 2005, the Jefferson Parish District Attorney’s Office charged Robert Williams by bill of information with possession of a firearm by a felon, in violation of La. R.S. 14:95.1. On July 22, 2005, defendant pled not guilty.

On January 26, 2006, defendant withdrew his former plea and entered a guilty plea, pursuant to North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970), and State v. Crosby, 338 So.2d 584 (La.1976). That same day, defendant was sentenced to ten years at hard labor without benefit of parole, probation, or suspension of sentence and ordered to pay a $2,000 fine.

Facts

Because defendant’s conviction was obtained as a result of a guilty plea, the facts and circumstances surrounding his offense are very limited. The arrest report shows that the police received several anonymous complaints that defendant was carrying a concealed weapon and “hanging around” an area known to the police as a high crime/high narcotic area. While the police were on patrol in the area, they spotted defendant. Defendant was stopped and a loaded .44 caliber handgun was |afound in the rear of his waistband. A subsequent computer check showed defendant had a 2001 conviction for simple burglary.

On appeal, defendant argues that the “trial court erred in denying the motion to continue, motion to suppress and the motion to enroll.” First, on a procedural note, we point out that defendant failed to brief his claim that the trial court erred in denying his motion to enroll as counsel. Under U.R.C.A. Rule 2-12.4, all specifications or assignments of error must be briefed and the appellate court may consider as abandoned any specification or assignment of error that has not been briefed. Restating an assigned error in brief without argument or citation of authority does not constitute briefing. State v. Lauff, 06-717 (La.App. 5 Cir. 2/13/07), 953 So.2d 813, 819. Accordingly, we will not consider this claim.

Next, we note that when defendant entered his guilty plea pursuant to Alford and Crosby, he failed to specify which pre-plea rulings he intended to reserve for appeal. In State v. Joseph, 03-315 (La.5/16/03), 847 So.2d 1196 (per curiam), the Louisiana Supreme Court held that a defendant’s failure to specify which pretrial rulings he wishes to reserve for appeal as part of a guilty plea entered under Crosby may limit the scope of appellate review but does not preclude review altogether. The supreme court explained:

Absent a detailed specification of which adverse pre-trial rulings the defendant reserved for appellate review as part of his guilty plea, an appellate court should presume that the trial court permitted a Crosby reservation no broader than necessary to effectuate the underlying purpose of conditional guilty pleas, i.e., to preserve review of evidentiary rulings which “go to the heart of the prosecution’s case” that a defendant would otherwise waive by entering an unqualified guilty plea.

State v. Joseph, supra, at 1196-97 (internal citations omitted). The supreme court stated that such rulings would include a motion to suppress the evidence but would ¡/‘exclude rulings which may affect the conduct of trial but ‘which do not substantially relate to guilt, such as the denial of a continuance or severance.’ ” Id. at 1197. We will, therefore, address defendant’s claim that the trial court erred in denying his motion to suppress statements.

In this claim, defendant argues that the trial court erred in denying his motion to suppress statement because defendant was “forced to plead guilty without knowing the nature of the [S]tate’s evidence against him,” which prevented defendant from knowingly determining that the State’s evidence against him was overwhelming, as required by North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970). Defendant presents no further argument and makes no showing of prejudice. The State responds that the trial court did not abuse its discretion in denying the motion to suppress statement, filed on the morning of trial, more than six months after arraignment, as untimely.

La.C.Cr.P. art. 521 requires that:

Pretrial motions shall be made or filed within fifteen days after arraignment, unless a different time is provided by law or fixed by the court at arraignment upon a showing of good cause why fifteen days is inadequate. Upon written motion at any time and a showing of good cause, the court shall allow additional time to file pretrial motions.

Further, La.C.Cr.P. art. 703 reads, in pertinent part:

B. A defendant may move on any constitutional ground to suppress a confession or statement of any nature made by the defendant.
C. A motion filed under the provisions of this Article must be filed in accordance with Article 521, unless opportunity therefor did not exist or neither the defendant nor his counsel was aware of the existence of the evidence or the ground of the motion, or unless the failure to file the motion was otherwise excusable. The court in its discretion may permit the filing of a motion to suppress at any time before or during the trial.

RThe record reflects that on the morning of trial, which began January 26, 2006, the trial court heard and initially denied a hearing on defendant’s motion to suppress statement on the basis that the motion was untimely. At that point, the trial judge noted that defendant was arraigned on July 22, 2005. Further, the trial judge noted that, at two previous hearings on January 23, 2006 and January 25, 2006, defense counsel had not mentioned that he would be filing a motion to suppress. The record supports the trial judge’s statements. We agree that these motions were untimely on their face.

We note, however, that the trial judge immediately thereafter agreed to consider the defendant’s motion during trial after the police officer’s testimony. It is within the court’s discretion to allow the untimely filing of a motion to suppress. La.C.Cr.P. art. 703(C). The trial judge was not, however, given the chance to reconsider the motion to suppress statement during trial because the defendant pled guilty during trial. We will, thus, consider the trial court’s denial of defendant’s motion to suppress.

La C.Cr.P. art. 521 mandates the court to allow additional time to file pretrial motions “upon written motion at anytime and a showing of good cause.” Here, defendant did file his motion in writing on the morning of trial. The motion does not state reasons to make a showing of “good cause” for the late filing.

Further, La.C.Cr.P. art. 703(C) provides that pretrial motions shall be filed in accordance with La.C.Cr.P. art. 521 unless “neither the defendant nor his counsel was aware of the existence of the evidence or the ground of the motion, or unless the failure to file the motion was otherwise excusable.” The record reflects that defense counsel was aware of the evidence that he sought to exclude for at least ten days before trial and definitely at the time of the two previous hearings in |fithe matter. The record contains no other evidence that the failure to file was excusable. We cannot say that the trial judge abused his discretion in finding that the motion was untimely. Accordingly, this claim lacks merit.

Additionally, because defendant failed to specify which pre-plea ruling he intended to challenge, we will not review the denial of defendant’s motion to continue trial. State v. Joseph, 03-315 (La.5/16/03), 847 So.2d 1196.

As is our practice, we have reviewed the record for errors patent, according to La. C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975); State v. Wetland, 556 So.2d 175 (La.App. 5 Cir.1990). We have found no errors that requires corrective action. Defendant’s conviction and sentence are affirmed.

AFFIRMED.

      . Interestingly, the record reflects that the trial court did not deny defense counsel’s motion to enroll but rather granted the motion to enroll on January 27, 2006.


text:
    STATE of Louisiana v. Vincent HINES.
    No. 07-KA-312.
    Court of Appeal of Louisiana, Fifth Circuit.
    Oct. 30, 2007.

      Paul D. Connick, Jr., District Attorney, Terry Boudreaux, Andrea F. Long, Ken J. Dohre, Assistant District Attorneys, Gret-na, LA, for Appellee, State of Louisiana.
    Mary E. Roper, Attorney at Law, Louisiana Appellate Project, Baton Rouge, LA, for Appellant, Vincent Hines.
    Panel composed of Judges MARION F. EDWARDS, SUSAN M. CHEHARDY, and WALTER J. ROTHSCHILD.
   SUSAN M. CHEHARDY, Judge.

|20n December 6, 2005, the Jefferson Parish District Attorney filed a bill of information charging Vincent Hines with looting, in violation of La. R.S. 14:62.5(C). Defendant pled not guilty and filed several pre-trial motions, including a motion to quash the bill of information, which was denied after hearing. On August 15, 2006, defendant withdrew his plea of not guilty and pled guilty as charged. In accordance with the plea agreement, defendant was sentenced to fourteen years at hard labor.

That same day, the State filed a multiple offender bill of information alleging defendant was a second felony offender based on a prior conviction for distribution of cocaine. Defendant admitted the allegations in the multiple bill and was resen-tenced under La. R.S. 15:529.1 to fourteen years without the benefit of probation or suspension of sentence.

On appeal, defendant challenges the constitutionality of the looting statute and the excessiveness of his sentence. Because defendant’s conviction was the result of a guilty plea, the record contains limited facts pertaining to the offense. |sThe record reflects that, on September 5, 2005, Captain Wood of the Jefferson Parish Sheriffs Office, was patrolling Harvey, Louisiana when he observed defendant removing furniture from a furniture store on LaPalco Boulevard. Captain Wood saw subjects removing furniture from the store through broken windows and loading it onto a pick-up truck. Captain Wood’s report noted that the New Orleans metropolitan area was on “disaster status” following Hurricane Katrina on the date of the offense.

In his first assignment of error, defendant argues that La. R.S. 14:62.5 is unconstitutionally vague. Defendant specifically argues that the looting statute is unconstitutionally vague because it fails to define the term “normal security” as it is used within the statute. He claims the offending phrase is ambiguous because it is unclear whether “normal security” refers to security put in place by the property owner or to security provided by a police force. He contends the statute offers no guidance to determine when “normal security” is absent so as to elevate the less serious offense of simple burglary to the more serious offense of looting.

A statute is presumed constitutional and the burden of proving unconstitutionality rests upon the party attacking the statute. State v. Interiano, 03-1760 (La.2/13/04), 868 So.2d 9, 13. In determining the constitutionality of a statute, the basic rules of statutory construction must be followed. Louisiana criminal statutes must be “given genuine construction, according to the fair import of their words, taken in their usual sense, in connection with the context, and with reference to the purpose of the provision.” La. R.S. 14:3; State v. Hair, 00-2694 (La.5/15/01), 784 So.2d 1269, 1274. A statute should be upheld whenever possible. In construing statutes, courts must strive to give an interpretation “that will give them effectiveness and purpose, rather than one which makes them |4meaningless.” State v. Cunningham, 04-2200 (La.6/13/05), 903 So.2d 1110, 1116.

A statute is unconstitutionally vague “if it fails to provide adequate notice of proscribed conduct and its consequences to persons of reasonable intelligence or fails to provide sufficient standards by which guilt or innocence may be determined.” State v. Boyd, 97-579 (La.4/14/98), 710 So.2d 1074, 1076. Broad language is not in itself vague. State v. Hair, 784 So.2d at 1274. The Louisiana Supreme Court has explained:

[T]he fact that a statute’s terms are subjective and susceptible to interpretation does not render it vague. Words in statutes need not have the same precision as mathematical symbols. Due process requires only that the language of a statute have generally accepted meaning so that a person of ordinary and reasonable intelligence is capable of discerning its proscriptions and is given fair notice of the conduct which is forbidden by its terms.

Id. at 1274.

Defendant asserts the language “normal security” within La. R.S. 14:62.5 is unconstitutionally vague. La. R.S. 14:62.5 provides:

A. Looting is the intentional entry by a person -without authorization into any dwelling or other structure belonging to another and used in whole or in part as a home or place of abode by a person, or any structure belonging to another and used in whole or in part as a place of business, or any vehicle, watercraft, building, plant, establishment, or other structure, movable or immovable, in which normal security of property is not present by virtue of a hurricane, flood, fire, act of God, or force majeure of any kind, or by virtue of a riot, mob, or other human agency, and the obtaining or exerting control over or damaging or removing property of the owner. (Emphasis added.)

Defendant argues that “normal security” is not defined within the statute so the public is not on notice of what constitutes “normal security” or when “normal security” is no longer in place. We find that the challenged phrase, when read in 15the context of the statute, has an easily understood meaning. The clear wording of the statute prohibits unauthorized entry into a home, place of business, or other structure and removal of property when the protection of the home, business, or structure is compromised by reason of a hurricane, other forces of nature, or civil unrest. An average person with reasonable intelligence would know that “normal security” of property is absent when the forces of nature or civil unrest damage a structure’s secured windows or doors, cause the structure’s occupants to be absent due to an evacuation or curfew, cause an electrical outage that could affect an alarm system, or cause a reduction in or absence of routine police protection.

In this case, the bill of information alleges defendant’s conduct occurred during a declared state of emergency, less than one week after Hurricane Katrina hit the New Orleans area. The language, in context, gives adequate warning of the conduct proscribed and provides a workable standard for the fact-finder to fairly administer the law. Thus, the trial court did not err in denying defendant’s motion to quash the statute as unconstitutionally vague.

In his second assignment of error, defendant challenges his sentence of fourteen years as excessive. Defendant contends that the chairs being looted were water-damaged and only had a value of twenty dollars in their damaged condition. He notes the trial court failed to consider any mitigating factors, namely the fact that his conduct did not cause or threaten serious harm. Defendant also asserts none of the aggravating factors listed in La.C.Cr.P. art. 894.1 were present. The State responds that defendant cannot appeal from a sentence imposed in conformity with a plea agreement.

On August 15, 2006, defendant pled guilty to looting, in violation of La. R.S. 14:62.5, and was sentenced to fourteen years at hard labor. That same day, defendant admitted that he was a second felony offender, his underlying sentence |fiwas vacated, and he was sentenced to fourteen years without benefit of probation or suspension of sentence under La. R.S. 15:529.1. Both sentences were imposed pursuant to plea agreements.

In his appellant brief, defendant seems only to challenge his underlying fourteen-year sentence as excessive. His underlying sentence was vacated so his enhanced sentence is the only reviewable sentence.

Under La.C.Cr.P. art. 881.2(A)(2), a defendant “cannot appeal or seek review of a sentence imposed in conformity with a plea agreement which was set forth in the record at the time of the plea.” This Court has consistently recognized that this article precludes a defendant from seeking review of a sentence to which the defendant agreed prior to pleading guilty. State v. Robinson, 04-1294 (La.App. 5 Cir. 4/26/05), 904 So.2d 10, 12.

In this case, the record reflects that defendant agreed to stipulate to his status as a second felony offender in exchange for a lesser sentence of fourteen years. The well-executed waiver of rights form reflects that defendant was advised and indicated that he understood that he would receive a fourteen-year sentence at hard labor in exchange for a guilty plea. During the plea colloquy, the trial judge reviewed the allegations to which defendant was stipulating and advised defendant that if he accepted the guilty plea, defendant would be sentenced as a multiple offender to fourteen years without the benefit of probation or suspension of sentence. Defendant indicated that he understood his sentence. Because defendant received a sentence imposed in conformity with a plea agreement that was set forth in the record at the time of the plea, he is barred from challenging the excessiveness of his sentence on appeal. See State v. Robinson, 904 So.2d at 12.

Finally, the record was reviewed for errors patent, according to La.C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975); State v. Wetland, 556 So.2d 175 (La.App. 5 Cir.1990). We find that defendant may have received an indeterminate sentence in violation of La.C.Cr.P. art. 879. When imposing the original fourteen-year sentence, the trial judge stated the sentence was to run concurrent with any probation time defendant was currently serving. The trial judge subsequently vacated the original sentence and imposed an enhanced sentence that was “to run concurrent with any parole time.”

The record is unclear as to defendant’s parole status at the time of sentencing. Unlike probation, there is no prohibition against the trial judge ordering a sentence to run concurrent with a parole revocation. La.C.Cr.P. art. 901(C)(2); State v. Arceneaux, 05-338 (La.App. 5 Cir. 12/27/05), 930 So.2d 44, 50. Accordingly, we conclude that the sentence may be indeterminate and remand to the district court for clarification of defendant’s sentence upon resen-tencing. See State v. Lai, 04-1053 (La. App. 5 Cir. 4/26/05), 902 So.2d 550, 562, writ denied, 05-1681 (La.2/3/06), 922 So.2d 1175.

AFFIRMED, REMANDED.

      . Co-defendants, Anthony Burrell, Frederick Hines, and Sharon Thompson were also charged in the bill of information with looting. Co-defendant Frederick Hines has a separate appeal set on a later docket.

      . Pursuant to La. R.S. 13:4448, this Court sent notice to the Louisiana Attorney General of the defendant’s appeal challenging a statute’s constitutionality. State v. Schoening, 00-903 (La.10/17/00), 770 So.2d 762, 765-66. As of the date of this opinion, the Attorney General has not filed a brief in this appeal.

      . On appeal, defendant does not challenge his status as a second felony offender.


author: THOMAS F. DALEY, Judge.

text:
    STATE of Louisiana v. Michael J. GARST.
    No. 07-KA-422.
    Court of Appeal of Louisiana, Fifth Circuit.
    Oct. 30, 2007.

      Harrietta J. Bridges, Department of Public Safety and Corrections, Baton Rouge, Louisiana, for Plaintiff/Appellant.
    Joseph A. Marino, III, Gretna, Louisiana, for Defendant/Appellee.
    Panel composed of Judges THOMAS F. DALEY, CLARENCE E. McMANUS, and FREDERICKA HOMBERG WICKER.
   THOMAS F. DALEY, Judge.

| i>The Department of Public Safety and Corrections, Office of State Police, Bureau of Criminal Identification and Information has appealed a judgment ordering the department to remove the defendant, Michael Garst, from the sex offender registration data base and relieving defendant of any further sex offender registration requirements. For the following reasons, we reverse.

FACTS:

On September 8, 2004, defendant pled guilty to carnal knowledge of a juvenile in violation of LSA-R.S. 14:80. The trial court sentenced defendant on December 14, 2004 to imprisonment at hard labor for five years, suspended, and placed him on active probation for five years. At that time, the trial court waived the sex offender registration requirements.

Later, a probation officer interviewed defendant and recommended that defendant register as a sex offender and give community notice of his crime, since under State v. Patín, 02-1126 (La.4/9/03), 842 So.2d 322, defendant was subject to | ^prosecution for failure to register as a sex offender pursuant to LSA-R.S. 15:540 et seq. Defendant accepted the probation officer’s recommendation and voluntarily registered as a sex offender, and the defendant’s name was thereafter included on the State Sex Offender and Child Predator Registry.

On February 10, 2006, the Department of Public Safety and Corrections, Division of Probation and Parole, filed a motion and order for hearing to revoke defendant’s probation based on defendant’s arrest in St. Bernard Parish for two counts of looting. On October 30, 2006, a hearing was conducted on the Rule to Revoke Probation. However, on that date, the pending charges in St. Bernard Parish were dismissed, and the Rule to Revoke Probation was dismissed by the probation officer. On that same date, the trial court ordered that defendant be removed from the sex offender registration database and be relieved of any further sex offender registration requirements pursuant to the original sentence of the court. On November 28, 2006, the Office of State Police filed a “Petition for (suspensive) Appeal” that was granted.

DISCUSSION

Appellant argues that the trial court erred by ordering that defendant, a convicted sex offender, be removed from the sex offender registration database and be relieved of any further sex offender registration requirements pursuant to the original sentence of the court.

Defendant responds that the trial court did not err in waiving sex offender registration and reporting. He asserts that the original sentence should remain, and that he should not be required to register as a sex offender. He argues that the appellant does not have standing to appeal the original sentence.

RThe record reflects that on September 8, 2004, defense counsel advised the trial judge that he had reviewed the waiver of rights form with defendant, and that defendant wished to withdraw his not guilty plea and plead guilty to a violation of LSA-R.S. 14:80 A(l), carnal knowledge of a juvenile. The trial judge ordered a pre-sentence investigation (PSI).

Defense, counsel also said that, pursuant to the discussion in the pre-trial conference, he was going to petition the trial court after the plea to allow defendant to be relieved of the reporting requirements under the sex offender statute. After-wards, the trial judge engaged in a plea colloquy with defendant and found that defendant’s guilty plea was knowing, intelligent, free, and voluntary.

On December 14, 2004, the trial judge told defendant she had an opportunity to read the probation supervision report. Defense counsel indicated he had also read it and that there was nothing incorrect in it. The trial judge then asked the prosecutor whether he had any objection to the PSI. The prosecutor responded that he had reviewed it and there was nothing else the court needed to know from the victim’s standpoint. The trial judge subsequently sentenced defendant to serve five years at hard labor in the Department of Corrections, suspended, and placed him on five years active probation. She also waived any sexual offender registration.

On October 30, 2006, the probation officer advised the trial judge that the rule to revoke defendant’s probation had been withdrawn, noting that the charges had been dismissed. The probation officer also advised the trial judge that defendant was complying with the other conditions of probation. The trial judge then issued an order that defendant’s name be removed from the sex offender registration database.

In State v. Patin, 02-1126 (La.4/9/03), 842 So.2d 322, 322-26 (per curiam), cited by the appellant in its brief and by defense counsel at the September 8, 20041 shearing, defendant pleaded guilty to carnal knowledge of a juvenile. The State appealed the trial court’s decision to exempt defendant from sex offender registration and notification requirements. The court of appeal upheld the trial court’s order.

The Supreme Court in Patín stated that LSA-C.Cr.P. art. 895 H(4) permitted a trial judge to relieve a sex offender convicted of carnal knowledge of a juvenile under LSA-R.S. 14:80 A(l) of the duty to register and notify under LSA-R.S. 15:542 as a condition of probation otherwise imposed by LSA-C.Cr.P. art. 895 H(l) (emphasis as found in original). Id. at 325. The Supreme Court therefore found that the appellate court properly concluded that the trial judge had the authority to waive sex offender notification procedures required by LSA-C.Cr.P. art. 895 H(l) as specific conditions of probation, although those provisions now cross-referenced LSA-R.S. 15:540-49, as to which waiver was no longer possible for any sex offender.

However, the Supreme Court in Patin granted the State’s application to clarify that respondent still had to comply with the registration and notification requirements of LSA-R.S. 15:540-49 because the failure to do so constituted not simply a breach of a probation condition, but an independent substantive criminal offense. Id. The Court noted that, “[t]he awkward asymmetry of present law in this regard is a matter for the legislature to address.” Id. at 326.

In a concurring opinion, Justice Weimer succinctly summed up the law on this issue as follows:

The waiver provisions of LSA-C.Cr.P. art 895(H)(4) explicitly apply only to conditions of probation. In limited circumstances, a trial court may waive the sex offender registration requirements as a condition of probation imposed by LSA-C.Cr.P. art. 895(H)(1) under |fithe waiver provisions of LSA-C.Cr.P. art. 895(H)(4). However, the court has no authority to waive altogether the registration requirements of LSA-R.S. 15:542, violation of which is a criminal offense. In 1999, the legislature deleted a comparable waiver provision from LSA-R.S. 15:544. The result is an untidy state of affairs from a practical standpoint.
If a probationer granted a waiver under LSA-C.Cr.P. art. 895(H)(4) fails to register under LSA-R.S. 15:542, the trial court may not revoke probation on the grounds that a condition of probation has been violated. However, the probationer risks revocation under the provisions of LSA-C.Cr.P. art. 859(A) (requiring that the probationer refrain from criminal conduct) because the failure to register under LSA-R.S. 15:542 constitutes an independent criminal of- • fense. The trial court cannot decriminalize behavior via a waiver. Consequently, as a practical matter, the waiver provisions of LSA-C.Cr.P. art. 895(H)(4) cannot be utilized.

State v. Patin, 842 So.2d at 326 (footnote as found in original).

Based on Patin, we find that the trial court erred by ordering that defendant be removed from the sex offender registration database and be relieved of any further sex offender registration requirements. Although the trial court had the authority to waive the sex offender registration requirements as a condition of probation under LSA-C.Cr.P. art. 895 H(4), it did not have the authority to waive the sex offender registration requirements of LSA-R.S. 15:540-49, violation of which is a criminal offense. Patin, supra. See also, State v. Quinones, 03-907 (La.App. 5 Cir. 12/30/03), 864 So.2d 824.

Defendant argues that the Louisiana Legislature corrected the problem set forth in Patín in the 2007 Regular Session. He asserts that the Legislature amended and reenacted LSA-R.S. 15:542 and other statutes pertaining to sex offender registration requirements. He contends that the new LSA-R.S. 15:542 specifically |7carves out an exception for the waiver of sex offender registration and notification for persons convicted of felony carnal knowledge of a juvenile. While, defendant is correct in that the Legislature has resolved the inconsistency noted by Patín, LSA-R.S. 15:542 F does not become effective until January 1, 2008. As such, Patín is still applicable to the instant case.

Defendant also contends that the Department of Public Safety and Corrections, Office of State Police, Bureau of Criminal Identification and Information does not have standing to appeal the original sentence. We note that the appellant is not appealing the original sentence; rather, it is appealing the trial court’s ruling ordering it to remove defendant’s name from the sex offender registration database.

One of the duties of the Bureau of Criminal Identification and Information is to establish and maintain a central registry of sex offenders and to adopt regulations and procedures to prescribe the terms and conditions under which information shall be released in accordance with the provisions of LSA-R.S. 15:540 through 549. LSA-R.S. 15:578 A(7). In the instant case, “the Department of Public Safety and Corrections, Office of State Police, Bureau of Criminal Identification and Information” is adversely affected by the trial court’s order to remove defendant’s name from the sex offender registry since one of its duties is to |sestablish and maintain that registry. As such, we find that the Office of State Police has standing to challenge the trial court’s order.

For the foregoing reasons, the October 30, 2006 order issued by the trial court is vacated.

ORDER VACATED; MATTER REMANDED.

      . In their inception, LSA-R.S. 15:542, see 1992 La. Acts 388, was purely a registration statute and LSA-C.Cr.P. art. 895(H), see 1992 La. Acts 962, was purely a notification statute. LSA-R.S. 15:542 then became a registration and notification statute in 1995, see 1995 La. Acts 928; LSA-C.Cr.P. art. 895(H) became a notification as well as registration statute in 2001 when the legislature rewrote subsection (H)(1) to cross reference LSA-R.S. 15:540-49.

      . A review of Act No. 460 of the 2007 Regular Session indicates that LSA-R.S. 15:542 F(2) now provides that, "Upon motion by the district attorney, the court may waive sex offender registration and notification requirements imposed by the provisions of this Chapter for a person convicted of felony carnal knowledge of a juvenile (R.S. 14:80) when the victim is at least thirteen years of age and the offender was not more than four years older than the victim.” Additionally, LSA-C.Cr.P. art. 895 H(4) was repealed by Section 3 of Act 460 effective January 1, 2008.

      . Compare, State ex rel. R.C. v. Louisiana Dept. of Public Safety and Corrections, 02-3025 (La.12/19/02), 838 So.2d 714 (per curiam). In that case, the Louisiana Supreme Court had before it a motion to stay the ruling of the juvenile court requiring the Department of Public Safety and Corrections to transfer five youths under the juvenile court’s jurisdiction from the Swanson Correctional Center to an alternate secure care facility. Upon learning that the juvenile court judge conducted no hearing at which evidence could be adduced before issuing his ruling, and in lieu of ordering that any transcript and record of the proceedings below be lodged, the Louisiana Supreme Court vacated and set aside the juvenile court's ruling and remanded the case to that court for an evidentiary hearing. See also, Roberson v. August, 01-1055 (La.App. 4 Cir. 5/29/02), 820 So.2d 620, 625 (the juvenile court has the authority to sentence juveniles and the Department of Corrections has the authority to assign juveniles to prison facilities). In these cases, the Department’s standing to contest the ruling that was adverse to the Department was not challenged.


author: FREDERICKA HOMBERG WICKER, Judge.

text:
    STATE of Louisiana v. Allen JONES a/k/a Larry Cheatteam.
    No. 07-KA-271.
    Court of Appeal of Louisiana, Fifth Circuit.
    Oct. 30, 2007.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Anne Wallis, Roger Jordan, Jr., Assistant District Attorneys, Parish of Jefferson, Gretna, Louisiana, for Plaintiff/Appellee.
    Jane L. Beebe, Attorney at Law, Louisiana Appellate Project, New Orleans, Louisiana, for Defendant/Appellant.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., THOMAS F. DALEY, and FREDERICKA HOMBERG WICKER.
   FREDERICKA HOMBERG WICKER, Judge.

|2In this criminal matter the defendant, Allen Jones a/k/a Larry Cheatteam, appeals his conviction and sentence for looting in the aftermath of Hurricane Katrina in violation of La R.S. 14:62.5 Finding no error in the proceedings below, we affirm.

The defendant was tried along with co-defendants, Jimmy Carter and Corey Cheatteam a/k/a Kedric Carter. At the conclusion of the trial, the jury returned a verdict of guilty as to all three defendants. After a motion for new trial was denied, the defendant was sentenced to eight years at hard labor. A timely motion |sfor appeal was granted. This appeal relates to the conviction and sentence only as it applies to Allen Jones a/k/a Larry Cheat-team.

The only issue presented for our review is whether the evidence used against the defendant was illegally seized, resulting in a trial court error in the denial of a defense motion to suppress the evidence.

FACTS

On the morning of September 3, 2005, Deputy Ryan Singleton of the Jefferson Parish Sheriffs Office was patrolling the Jefferson Parish West Bank area in an attempt to deter looting and restore order to the community after Hurricane Katrina hit the area on August 29th. Deputy Singleton was assisted in this endeavor by two volunteer officers from the Douglas County Georgia Sheriffs Office. Deputy Singleton was in his vehicle alone, while the two Georgia officers, accompanied by a canine, were in a separate vehicle. Because the radio towers were down and the Georgia frequencies did not match that in Deputy Singleton’s unit, the officers in the two separate vehicles were unable to converse. Consequently, the Georgia officers followed Deputy Singleton on his patrol, stopped and got out when he did.

Deputy Singleton explained that he had been in charge of the detail of officers at the Burlington Coat Factory (Burlington) on Manhattan Boulevard prior to the hurricane and was familiar with the store and its merchandise. The store had been closed since Hurricane Katrina, and the deputy was asked by the manager to check on the store whenever possible. Deputy Singleton had discovered the previous day that the store had been broken into and was looted, although many items still remained in the store. Consequently, he returned the following day in an attempt to deter any further losses. He was in the parking lot of the store when he |4saw three men come out, each carrying a backpack. The deputy described the three as African-Americans, two wearing shorts and one wearing jeans. One of the men had dreadlocks covered partially by a hat. One of the other men had a “low” haircut.

When the three men saw Deputy Singleton’s unit, they ran up the sidewalk area towards Manhattan. Because the parking lot was strewn with debris including a downed pole, Deputy Singleton had to proceed slowly. By the time he got to the corner of the building, the three suspects had disappeared. The officer theorized that the men went into the convalescent home behind Burlington. He explained that there is an alleyway and a small fence, which was blown down by the storm, between the back of Burlington and the convalescent home. Deputy Singleton drove onto Manhattan and around the area, but was unable to find the suspects.

The officers resumed their normal patrols. About thirty minutes to one hour later while driving on Pailet Street, a residential area off Manhattan, Deputy Singleton spotted the three men. Deputy Singleton testified that he recognized the three as the same three individuals who came out of Burlington earlier with the backpacks. Deputy Singleton was certain they were the same individuals, and further testified they were still carrying the backpacks.

At this point, Deputy Singleton got out of his car with his weapon drawn, and ordered the men to drop the backpacks. The Georgia officers, traveling close behind did the same. The three suspects complied with the deputy’s orders. Deputy Singleton conducted a pat down search, which produced no weapons. Deputy Singleton then retrieved the backpacks. The officer knew that the backpacks were from Burlington because he often worked a detail in the store to prevent shoplifting. Deputy Singleton testified that he recalled that there was a “school wall” near the front door of the store and these backpacks were part of the |Rdisplay. The backpacks each sported a Burlington sales tag attached on the outside of the bag.

The deputy opened the backpacks then to be sure there were no weapons and found clothing items taken from Burlington inside all three. Deputy Singleton testified that he was familiar with, and could identify, the tags on all of the items inside the backpacks as those used by Burlington. The officer took an inventory of the items in the three backpacks. The items included tee shirts, shirts, and a pair of Nike shoes. There were a total of twenty-six items in the three backpacks for a total amount of $368.00.

While Deputy Singleton was involved with the three suspects, the two Georgia officers were providing protection. Deputy Singleton explained that was necessary because there were about fifteen to twenty individuals shouting obscenities and cursing at the officers from a two-story apartment building behind them. The three subjects were arrested and taken to police headquarters. Because of Hurricane Katrina there were no means to photograph the items, so they were inventoried and then returned to the store.

ASSIGNMENT OF ERROR

In brief to this court, the defendant argues the trial court erred in denying his motion to suppress the evidence. The defendant asserts that the officers had neither reasonable suspicion of criminal activity for an investigatory stop, nor probable cause to arrest the defendant under the facts of this case. Therefore, any evidence taken from the defendant was illegally seized and should have been suppressed. The defendant asserts that the merchandise was found only after the officer looked into the backpacks. The defendant reasons that, even assuming there was some basis for a stop, the seizure of evidence was illegal because he complied with the officer’s request to drop the backpack and put his hands on the |í;police car. The defendant further argues that even if the backpacks contained weapons, the threat to the officer was removed when the defendant dropped the backpack. The defendant reasons that, since no weapon or contraband was found on him, there was no justification for the arrest and no reason or justification to search the backpack.

The State responds that Deputy Singleton had probable cause to arrest the defendant because the officer saw the defendant and his two co-defendants leave Burlington with backpacks during a time of extensive looting in the aftermath of Hurricane Katrina. The officer testified both at the motion to suppress hearing and at trial that he was certain as soon as he saw the three men that they were the same three who exited the store with the backpacks.

The State further argues that the backpack was searched pursuant to a valid arrest and the evidence seized should not be suppressed. The State argues that an analysis of whether there was reasonable suspicion for an investigatory stop is inappropriate since Deputy Singleton had probable cause for arrest. We find the State’s argument persuasive.

LAW AND ANALYSIS

The Fourth Amendment to the United States Constitution and Louisiana Constitution Article I, § 5 protect individuals from unreasonable searches and seizures. State v. Massey, 03-1166 (La.App. 5 Cir. 1/27/04), 866 So.2d 966, 968. It is axiomatic that a valid arrest for criminal activity is not a constitutionally unreasonable seizure.

An officer may make a warrant-less arrest when the officer has probable cause to believe that the person to be arrested has committed an offense. State v. Davis, 00-278 (La.App. 5 Cir. 8/29/00), 768 So.2d 201, 212 (citing La.C.Cr.P. art. 213), writ denied, 00-2730 (La.8/31/01), 795 So.2d 1205. Probable cause to arrest 17exists when the facts and circumstances within an officer’s knowledge, and of which he has reasonable, trustworthy information, are sufficient to justify a man of ordinary caution in believing that the person to be arrested has committed a crime. State v. Austin, 04-993 (La.App. 5 Cir. 3/1/05), 900 So.2d 867, writ denied, 2005-0830 (La.11/28/05), 916 So.2d 143.

In the determination of whether probable cause exists for the arrest, all of the information in the possession of the police, at the time of the arrest, should be considered. State v. Buckley, 426 So.2d 103, 109 (La.1983). A determination of probable cause, unlike the determination of guilt at trial, does not require the resolution of conflicting evidence under a reasonable doubt or even a preponderance standard sufficient to support a conviction, since it deals with probabilities. However, it does require something more than bare suspicion. Gibson v. State, 99-1730 (La.4/11/00), 758 So.2d 782, 788-89, cert. denied, 531 U.S. 1052, 121 S.Ct. 656, 148 L.Ed.2d 559 (2000).

Probable cause must be judged by the probabilities and practical considerations of everyday life on which average men, and particularly average police officers, can be expected to act. State v. Williams, 98-1006 (La.App. 5 Cir. 3/30/99), 735 So.2d 62, 72, writ denied, 99-1077 (La.9/24/99), 747 So.2d 1118. The facts need not eliminate all possible innocent explanations in order to support a finding of probable cause. Gibson v. State, 758 So.2d at 789. The determination of reasonable grounds for probable cause for an arrest does not rest on the officer’s subjective beliefs or attitudes, but rather turns on a completely objective evaluation of all the circumstances known to the officer at the time of the arrest. State v. Hill, 821 So.2d at 83.

One of the most important factors in determining if probable cause exists is satisfied when police officers know that a crime has actually been committed. In Lsuch a case, the police officers need only demonstrate probable cause to identify the person who committed the crime. State v. Sterling, 444 So.2d 273, 278 (La.App. 1 Cir.1983).

In the matter before us, Deputy Singleton witnessed the defendant and two others come out of an already looted Burlington Coat Factory. The three men were carrying backpacks and ran when they saw Deputy Singleton’s police unit. The deputy saw the same individuals within an hour later in the same general area and positively identified them as the men he had seen earlier at Burlington. Deputy Singleton also testified that the defendant and his companions were still carrying the backpacks. Further, Deputy Singleton testified that he recognized the backpacks as Burlington’s merchandise because he worked details at the store and was familiar with the backpacks and the tags used on Burlington merchandise.

The State has the burden of establishing the admissibility of evidence seized without a warrant in a hearing on a defense motion to suppress the evidence. La.C.Cr.P. art. 703(D), State v. Manson, 01-159 (La.App. 5 Cir. 6/27/01), 791 So.2d 749, 755. A trial court’s denial of a motion to suppress is afforded great weight, and it will not be set aside unless the preponderance of the evidence clearly favors suppression. State v. Payne, 04-1084 (La.App. 5 Cir. 1/25/05), 894 So.2d 528, 530. The appellate court must consider the totality of the circumstances, while giving deference to the inferences and deductions of trained police officers that might elude an untrained person. State v. Gagnon, 817 So.2d at 170. The evidence adduced at the hearing on the motion to suppress, as well as all pertinent evidence given at the trial of the case, may be considered in determining whether a motion to suppress ruling was correct. State v. Roche, 05-237 (La.App. 5 Cir. 4/25/06), 928 So.2d 761, 765, writ denied, 06-1566 (La.1/8/07), 948 So.2d 120.

|9The defendant’s main support for his argument that the evidence was unconstitutionally seized is faulty as it misstates Deputy Singleton’s trial testimony. The defendant argues that Deputy Singleton did not recognize the three men when he stopped them, and only realized they had looted when he opened the backpack after the arrest. That argument is not supported by the deputy’s testimony. Deputy Singleton’s testimony in both the motion to suppress hearing and at trial was consistent. The deputy testified that he clearly saw the three men when they came out of Burlington with the backpacks, and later recognized them immediately as the same three men he saw earlier. We find that to be sufficient probable cause for the arrest.

Our next inquiry is whether the search of the backpacks was justified. The right to seize items after lawful arrest and during booking is not completely unfettered, as the item seized must be contraband, an instrumentality of the crime, a fruit of the crime, or evidence of a crime. State v. Wilson, 467 So.2d 503, 517 (La.1985), cert. denied, 474 U.S. 911, 106 S.Ct. 281, 88 L.Ed.2d 246 (1985).

Here, the backpacks were searched after the suspects were arrested and handcuffed. We are aware that searches incident to a lawful arrest are not without limitations and there has been much discussion on the extent of the intrusion allowed by such searches. See: State v. Warren, 05-2248 (La.2/22/07), 949 So.2d 1215. However, we find that analysis is unnecessary in the matter before us.

In the instant case, Deputy Singleton affected a valid arrest of the defendant for looting the Burlington Coat Factory. It is clear from the testimony that this officer had special knowledge of the merchandise of Burlington because of his job as the head of a police detail at the store before the hurricane. Further, he testified that he recognized the backpacks the defendant and his two co-defendants were carrying as items sold by Burlington in a display area near the door. Finally, he | intestified that the backpacks themselves still had sales tags which were visible on the exteri- or of the bags. Therefore, the individual backpacks were evidence of the crime in plain view at the time of the arrest.

In order for the plain view exception to the warrant requirement to apply, there must be prior justification for police intrusion into a protected area and it must be immediately apparent, without close inspection, that the item is contraband. Horton v. California, 496 U.S. 128, 110 S.Ct. 2301, 110 L.Ed.2d 112 (1990); State v. Gray, 06-298 (La.App. 5 Cir. 10/31/06), 945 So.2d 798; writ denied, 2006-2958 (La.9/14/07), 963 So.2d 993.

We find that to be the case here. Deputy Singleton had probable cause to arrest and justification to search the backpacks since the backpacks themselves were contraband. Consequently, we find no error in the decision of the trial court to deny the defendant’s motion to suppress the evidence presented against him.

The defendant also requests a review of the record for errors patent. We have conducted such a review and find three such errors. Initially, we note that the defendant was not arraigned on the amended bill of information which added his alias. However, the defendant did not object to this failure prior to trial. Accordingly, this error is waived. La.C.Cr.P. art. 555; State v. Wilson, 00-1378 (La.App. 5 Cir. 6/27/01), 789 So.2d 766.

The record reveals that the trial judge did not observe the mandatory twenty-four hour delay between the denial of a motion for new trial and sentencing required by La.C.Cr.P. art. 873. As a rule, when a defendant challenges a non-mandatory sentence and the delay is not waived, his sentence must be vacated and the case remanded for resentencing. 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 |1¶570. However, in State v. White, 404 So.2d 1202 (La.1981), the Louisiana Supreme Court has found:

Although C.Cr.P. Art. 873 unequivocally requires the trial court to delay imposition of sentence for a period of at least 24 hours after denial of post-trial motions, there has been no objection raised regarding the sentence imposed in this case and no showing or suggestion that defendant was prejudiced by the failure to observe the delay. Judicial efficiency therefore dictates that this court need not follow the useless formality of remanding for reimposition of a sentence which has not been challenged.
State v. White, 404 So.2d at 1204 (Citation omitted).

Citing State v. White, supra, this court has found that when a defendant does not waive the twenty-four hour delay afforded by La.C.Cr.P. art. 873, and does not challenge the penalty imposed, the error may be harmless. State v. Alexander, 98-993 (La.App. 5 Cir. 3/10/99), 734 So.2d 43, 48 writ denied, 99-2138 (La.12/10/99), 751 So.2d 250.

Although the defendant herein did not waive the delay for sentencing, he did not object to the sentence in the trial court, or raise any issue regarding his sentence on appeal. Accordingly, we find no corrective action is necessary.

The final error patent on the record is admitted in the State’s brief. The trial court failed to advise the defendant of the prescriptive period for filing for post-conviction relief as required by La.C.Cr.P. art. 930.8. Therefore, we remand this matter to the trial court with an order to inform the defendant of the appropriate prescriptive period for filing post-conviction relief by sending appropriate written notice to the defendant within ten days of the rendition of this opinion, and to file written proof that the defendant received the notice in the record.

The conviction and sentence is affirmed and the matter is remanded to the trial court with an order.

AFFIRMED AND REMANDED WITH ORDER.

      . R.S. 14:62.5(A) provides: Looting is the intentional entry by a person without authorization into any dwelling or other structure belonging to another and used in whole or in part as a home or place of abode by a person, or any structure belonging to another and used in whole or in part as a place of business, or any vehicle, watercraft, building, plant, establishment, or other structure, movable or immovable, in which normal security of property is not present by virtue of a hurricane, flood, fire, act of God, or force majeure of any kind, or by virtue of a riot, mob, or other human agency, and the obtaining or exerting control over or damaging or removing property of the owner.

      . The other two defendants have filed separate appeals with this court.

      . There is a discrepancy between the minute entry and the transcript on this issue. Accordingly, the transcript prevails.


author: WALTER J. ROTHSCHILD, Judge.

text:
    STATE of Louisiana v. Antonio MAHOGANY.
    No. 07-KA-360.
    Court of Appeal of Louisiana, Fifth Circuit.
    Oct. 30, 2007.

      Paul D. Connick, Jr., District Attorney, Twenty-Fourth Judicial District, Parish of Jefferson, Terry M. Boudreaux, Thomas J. Butler, Assistant District Attorneys, Gret-na, Louisiana, for Plaintiff/Appellee.
    Jane L. Beebe, Attorney at Law, Louisiana Appellate Project, New Orleans, Louisiana, for Defendant/Appellant.

      Panel composed of Judges MARION F. EDWARDS, WALTER J. ROTHSCHILD, and GREG G. GUIDRY.
   WALTER J. ROTHSCHILD, Judge.

li.Qn October 20, 2005, the Jefferson Parish District Attorney filed a bill of information charging defendant, Antonio Mahogany, with unauthorized entry of a place of business, in violation of LSA-R.S. 14:62.4. Defendant pled not guilty on November 7, 2005. On September 6, 2006, after a bench trial, defendant was found guilty as charged. He filed a motion for post-verdict judgment of acquittal and a supplemental motion, which were denied on January 30, 2007. Also on January 30, 2007, the State filed a multiple bill and defendant denied the allegations. The trial court set the multiple bill hearing for a later date. Then, the trial court sentenced defendant on the unauthorized entry of a place of business conviction to two years imprisonment at hard labor. Defendant filed a motion to appeal his conviction and sentence, which was granted.

FACTS

Is At trial, Edwin Tobin, the store manager of Cash America Pawn Shop in Harvey, testified that he went to the business at about 8:30 a.m. on September 1, 2005, just days after Hurricane Katrina struck the area, and he noticed that the store had been broken into. Because his store had already been looted, he decided to move the remaining jewelry to the Cash America store in Marrero. Mr. Tobin had checked the Marrero store the previous day and noted that it had not been broken into and appeared to be secure.

On his way to the Marrero store, Mr. Tobin observed two Jefferson Parish police officers, Sergeant Lori Arnaud and Deputy Janice Griffin, and he approached them. He explained who he was, showed them his business card, told them he thought the jewelry would be safer at the store that had not been broken into, and asked that they escort him to the Cash America store in Marrero. Sergeant Arnaud and Deputy Griffin followed Mr. Tobin to the store. When they arrived at Cash America, the side wall of the building was destroyed. It appeared that someone had used a vehicle to damage the side of the building, creating an opening in the wall. Mr. Tobin testified that he did not know when the damage occurred, but it was not there the prior day when he observed the building.

As Mr. Tobin opened the door to the Marrero store, he and the officers observed a light inside. At the time, there was no electricity in the area, so no lights should have been on. The light was a headlight of a four-wheeler “which was currently in pawn.” Defendant, Antonio Mahogany, was observed inside the building in the area where the light was on. Sergeant Arnaud saw defendant duck down. She advised Mr. Tobin to vacate the property. Then, she went to the side of the building where the hole was located, while Deputy Griffin stayed in the front of the building. When Sergeant Arnaud went to the side of the building, she heard the |4four-wheeler running. After Sergeant Arnaud gave a couple of verbal commands to exit the building, defendant complied.

Defendant was arrested by Sergeant Ar-naud. He was searched, and a Ford key was found on his person. From her knowledge, Sergeant Arnaud did not believe the key came from the pawn shop. In court, Sergeant Arnaud identified defendant as the person she saw inside the Cash America Pawn Shop. Sergeant Ar-naud admitted that she did not know defendant’s motivations for being in the store that day. Mr. Tobin testified that defendant did not have permission to be in the Cash America store. After the storm, the business was no longer open to the public.

LeKeva Harris, who shares three children with defendant, testified that they did not evacuate for Hurricane Katrina. Ms. Harris stated that there was some food in the house when the storm came, but the food and drink situation got worse as the days went by. According to Ms. Harris, there was a little food in the house on September 1, 2005. However, she then testified that there was nothing left in the house for the kids to drink or eat on September 1st. She indicated that defendant had a Camaro and a Ford Explorer at the time, but they did not have fuel to get out of town. She stated that defendant left home on the morning of September 1st on her daughter’s bike with a gas can to look for gas. Ms. Harris further testified that she left town in defendant’s brother’s car about a week after defendant was arrested. She admitted that defendant’s brother was in the house with them on September 1st, and he had a vehicle with gasoline in it, but “not that much.” She then stated that she did not know if defendant’s brother had a vehicle with fuel on the day defendant was arrested.

Defendant was called to the stand in his defense. He admitted that he had two prior convictions and testified that he owned a Ford Explorer. According to | ¡^defendant, his vehicle did not have fuel in it on September 1, 2005. He also testified that the car was not dependable, because it ran hot. He stated that he woke up on September 1, 2005, and told Ms. Harris that a man was ciphering gas and filling gas cans for $10, so she should get the children ready, and they would leave when he got back. He left on their daughter’s bike with the gas can and some money and went to where he was told the man with the gas would be, but he was not there. After he could not get gas, he saw the Cash America business and thought he would try to find something to help them get through the rest of the storm. He claimed that his family did not have access to anything and could not get water from shelters because they were not staying there. Defendant testified that after he was arrested, the officers did not give him the opportunity to explain what he was doing in the store. However, he also testified that he explained to the arresting officer that he was looking for anything that would help his family.

Defendant admitted that he was in the pawn shop, but stated that he did not turn the four-wheeler’s lights on. He testified that there was nothing in the store that could have helped his family, so he left. At that time, the arresting officer saw him. He claimed that the officers did not see him inside the building. He did not think he would find gas in the pawn shop, but he thought the pawn shop might have a generator that could have helped. When asked what he planned on putting in the generator, he said “whatever was possible” and noted that he might not have been thinking at the time. Defendant explained that the key in his pocket when he was arrested was for a Ford Explorer that was in a junkyard. The owner of the junkyard gave him the authority to take parts off the vehicle and to use the parts for his vehicle. He stated that the officer took the key because it was tagged.

On rebuttal, Sergeant Arnaud testified that she did not recall defendant explaining to her why he was in the business. She stated that she had no doubt that | fihe was in the building, because she saw him when the front door was opened and then watched him exit the hole in the building. She did not recall seeing a gas can or a bicycle.

At the conclusion of trial, the trial court found defendant guilty as charged, noting there was no reason for him to be in a pawn shop post-Katrina.

DISCUSSION

In his first assignment of error, defendant argues that the trial court erred in failing to grant his motion for post-verdict judgment of acquittal, because the State failed to prove beyond a reasonable doubt that he had criminal intent when he entered the store in the aftermath of Hurricane Katrina. Defendant contends that he entered the pawn shop to look for anything that would help his family because they were desperate for food, water and fuel. As such, defendant argues that the State failed to exclude this reasonable hypothesis of innocence. The State responds that the evidence presented was sufficient to establish that defendant committed the crime of unauthorized entry of a place of business.

“A post verdict judgment of acquittal shall be granted only if the court finds that the evidence, viewed in a light most favorable to the state, does not reasonably permit a finding of guilty.” LSA-C.Cr.P. art. 821(B). If the court finds “the evidence, viewed in a light most favorable to the state, supports only a conviction of a lesser included responsive offense, the court, in lieu of granting a post verdict judgment of acquittal, may modify the verdict and render a judgment of conviction on the lesser included responsive offense.” LSA-C.Cr.P. art. 821(C) and (E).

Evidence may be either direct or circumstantial. When circumstantial evidence is used to prove the commission of the offense, LSA-R.S. 15:438 mandates that, “assuming every fact to be proved that the evidence tends to prove, in order to convict, it must exclude every reasonable hypothesis of innocence.” Id. [7Ultimately, both direct and circumstantial evidence must be sufficient to support the conclusion that the defendant is guilty beyond a reasonable doubt. State v. Wooten, 99-181 (La.App. 5 Cir. 6/1/99), 738 So.2d 672, 675, writ denied, 99-2057 (La.1/14/00), 753 So.2d 208.

LSA-R.S. 14:62.4 provides as follows:

A. Unauthorized entry of a place of business is the intentional entry by a person without authority into any structure or onto any premises, belonging to another, that is completely enclosed by any type of physical barrier that is at least six feet in height and used in whole or in part as a place of business.
B. Whoever commits the crime of unauthorized entry of a place of business shall be fined not more than one thousand dollars or imprisoned with or without hard labor for not more than six years, or both.

Defendant argues that the trial court should have granted his motion for post-verdict judgment of acquittal, because the State did not prove that he had the requisite criminal intent at the time of the alleged crime. “In the absence of a qualifying statutory provision, the terms ‘intent’ and ‘intentional’ in criminal statutes have reference to general criminal intent.” State ex rel. E.D.C., 39,892 (La.App. 2 Cir. 5/11/05), 903 So.2d 571, 575, writ denied, 05-1568 (La.1/27/06), 922 So.2d 544. According to LSA-R.S. 14:10, general intent exists when the circumstances indicate that the offender, in the ordinary course of human experience, must have adverted to the prescribed criminal consequences as reasonably certain to result from his acts or from his failure to act.

Considering the testimony and evidence before us, we find no error in the trial court’s determination that defendant possessed the requisite general criminal intent when he entered the Cash America business. The evidence reveals that he intentionally entered the store, which served as a pawn shop, without authority. Viewing the evidence in a light most favorable to the state, a reasonable trier of | sfact could have found defendant guilty as charged. Accordingly, we find that the trial court did not err in denying defendant’s motion for post-verdict judgment of acquittal.

In his second assignment of error, defendant argues that the trial court erred in failing to grant a mistrial when the State continually tried to admit evidence of other crimes by making reference to a “stolen” key. Defendant explains that this error was not harmless, because these references could have caused the judge to believe that defendant intended to steal in the pawn shop when no other evidence of criminal intent was presented.

The State responds that a mistrial was not warranted in these instances for the following reasons: (1) the rule regarding mistrials for Prieu violations is applicable only in jury trials and not bench trials; (2) the reference to the key was not a specific reference to a specific crime; and (3) the evidence was admissible as res gestae. Although the State argues that the admission of this evidence was not error, it further contends that any error committed in the admission of prior bad acts would be harmless.

During trial, the State referenced the key in its opening statement and mentioned the key was something “he probably shouldn’t have had[.]” Defense objected to this comment and noted the following:

[W]e had essentially an unofficial motion previously on the characterization of this key as being stolen and the State agreed that it had no evidence that it was stolen and would not try to say such at trial and now, all of a sudden, she’s doing essentially the same thing by saying he had something in his possession that he probably shouldn’t have had in his possession.
I object. I don’t want to see any further comments like that in this trial, Judge, or I’ll move for a mistrial.

It/The State withdrew the statement and the court recognized that it was withdrawn.

Later, defendant moved for a mistrial after the State asked Sergeant Arnaud the following question:

Q: The key that I showed you that you had taken from the defendant, is that the only key of that nature that you saw that day?
A: No. They were at every dealership on the ground. Everybody we stopped had keys on them like that. They were stealing them from the dealerships.
Q: Okay. But you don’t know—

Thereafter, the State withdrew the question, noting it was aware that this officer could not testify that the key was stolen. The trial court noted that the question and the response were withdrawn, and denied the mistrial motion.

Generally, evidence of other crimes or bad acts committed by a criminal defendant is inadmissible at trial unless the probative value of the evidence substantially outweighs its unfair prejudicial effect, or it falls under one of the exceptions to the exclusionary rule. LSA-C.E. arts. 403 and 404(B); State v. Smart, 05-814 (La.App. 5 Cir. 3/14/06), 926 So.2d 637, 647, writ denied, 06-1225 (La.11/17/06), 942 So.2d 533. An impermissible reference to other crimes is subject to a harmless error analysis. State v. Johnson, 94-1379 (La.11/27/95), 664 So.2d 94, 102; State v. Quest, 00-205 (La.App. 5 Cir. 10/18/00), 772 So.2d 772, 785, writ denied, 00-3137 (La.11/2/01), 800 So.2d 866. The test for determining harmless error is whether the verdict actually rendered in the case was surely unattributable to the error. Id.

A mistrial is a drastic remedy and, except in instances where a mistrial is mandatory, is warranted only when trial error results in substantial prejudice to defendant, depriving him of a reasonable expectation of a fair trial. State v. Paul, 05-612 (La.App. 5 Cir. 2/14/06), 924 So.2d 345, 352. Whether a mistrial should |inbe granted is within the sound discretion of the trial court, and denial of a motion for mistrial will not be disturbed on appeal absent an abuse of that discretion. Id.

LSA-C.Cr.P. art. 770(2) provides that 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 ... [ajnother crime committed or alleged to have been committed by the defendant as to which evidence is not admissible!)]” (Emphasis added). LSA-C.Cr.P. art. 771 sets forth the situations in which the trial court must admonish the jury to disregard a remark or comment made during the trial, or in argument within the hearing of the jury.

The present case involved a bench trial. The Louisiana Supreme Court has recognized that LSA-C.Cr.P. articles 770 and 771 are designed to guard against improprieties in the jury’s presence and do not mandate a mistrial in a bench trial when a prohibited question is propounded. State v. Marshall, 359 So.2d 78, 83 (La.1978).

In State v. Anderson, 02-273 (La.App. 5 Cir. 7/30/02), 824 So.2d 517, 521, writ denied, 02-2519 (La.6/27/03), 847 So.2d 1254, this Court stated:

The Fourth Circuit has held that Article 770(2) is applicable only in jury trials, and not in bench trials. State v. Bertram, 511 So.2d 1171, 1172 (La.App. 4 Cir.1987), writ denied, 517 So.2d 810 (La.1988). Citing Bertram, the court in Jenkins v. Baldwin, 00-0802 (La.App. 4 Cir. 8/29/01), 801 So.2d 485, 492, stated that “[t]he admissibility of evidence in a judge trial is different from the requirements of jury trials.... A judge, unlike a jury, by virtue of the judge’s training and knowledge of the law is fully capable of disregarding any impropriety.” Compare State v. Myers, 584 So.2d 242, 253 (La.App. 5 Cir.1991), writ denied, 588 So.2d 105 (La.1991), cert. denied, 504 U.S. 912, 112 S.Ct. 1945, 118 L.Ed.2d 550 (1992), in which this court found that the Bruton rule “does not apply in a bench trial because it is presumed that the judge is capable of applying the rule of limited admissibility and will consider the proffered statement with respect to the confessor’s guilt alone.” I^Based on this jurisprudence, as well as the judge’s comments at trial that he would disregard all “other crimes” testimony, we find that the trial court did not err in denying defendant a mistrial based on the admission of other crimes evidence. This assigned error is without merit.

(Footnote omitted).

This Court referenced State v. Anderson in State v. Hebert, 05-1004 (La.App. 5 Cir. 4/25/06), 930 So.2d 1039, 1048. In State v. Hebert, the defendant argued a mistrial should have been granted, regardless of the fact that the trial was a bench trial, because he was denied a fair trial after the State questioned him about what he said or did not say after his arrest. Id. at 1047. This Court held in Hebert that the trial court was able to disregard any inferences that would have prejudiced the defendant. It additionally found that the record showed the trial was fairly conducted and there was strong proof of the defendant’s guilt. As such, this Court found no basis for the granting of a mistrial. Id. at 1048-49.

In the present case, the references to the key, of which defendant complains, did not specifically indicate that defendant had committed other crimes. However, even if the references could be construed as indicating that defendant committed other crimes, this was a bench trial and the trial court was certainly able to disregard these references. Thus, any impermissible reference to other crimes would have been harmless. Considering the other evidence against defendant, the verdict was surely unattributable to the references to the key.

Based on the record before us, we find that defendant received a fair trial and that the trial court did not err in denying defendant’s motion for mistrial based on other crimes evidence. Accordingly, this assignment of error is without merit.

ERRORS PATENT

The record was reviewed for errors patent in accordance with LSA-C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975); and State v. Wetland, 556 So.2d 175 (La.App. 5 Cir.1990). Our review revealed that there are two discrepancies between the commitment and the transcript. When there is a conflict between the transcript and the commitment, the transcript controls. State v. Lynch, 441 So.2d 732 (La.1983).

First, the commitment reflects that defendant was found guilty on September 6, 2006 after a judge trial “on count 1) 14:62.4 F III BURGLARY/BUSINESS.” However, the transcript reflects that he was found guilty of unauthorized entry of a place of business. It is noted that the court originally found defendant guilty as charged of burglary of a business, but corrected it to 14:62.4, unauthorized entry of a business, after being prompted by the State. As such, the commitment should be corrected to reflect the correct crime of which defendant was convicted.

Second, the trial court failed to properly inform defendant of the prescriptive period for filing post-conviction relief pursuant to LSA-C.Cr.P. art. 930.8. Although the commitment reflects that defendant was given a proper post-conviction relief advisal, the transcript reflects the trial court stated defendant had “2 years within which to file an application for post-conviction relief.” This Court has held that the failure to advise defendant that the prescriptive period runs from the time his conviction and sentence become final renders the advisal incomplete. State v. Grant, 04-341 (La.App. 5 Cir. 10/26/04), 887 So.2d 596, 598. Therefore, we remand the case and order the trial court to inform defendant of the proper prescriptive period for filing for post-conviction relief by sending written notice of such to defendant within ten (10) days of the rendition of this opinion, and to file written proof in the record that defendant received the notice. Id.

DECREE

For the reasons set forth above, we affirm defendant’s conviction and sentence. We remand the case and order the trial court: 1) to correct the | ^commitment to reflect the correct crime of which defendant was convicted, i.e. unauthorized entry of a business; and 2) to send defendant written notice of the proper prescriptive period for filing for post-conviction relief.

AFFIRMED; REMANDED WITH INSTRUCTIONS.

      . The multiple bill proceedings are not contained in the record before us and are not at issue in this appeal.

      . At the time of the incident, Sergeant Arnaud was a deputy.

      .Kristen Mayberry, another manager, as well as two other people, were with Mr. Tobin at the time.

      . State v. Prieur, 277 So.2d 126 (La.1973).