author: TERRI F. LOVE, Judge.

text:
    STATE of Louisiana v. Rudy FRANCIS.
    No. 2007-KA-0480.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 30, 2008.

      Eddie J. Jordan, Jr., District Attorney, David S. Pipes, Assistant District Attorney, New Orleans, LA, for PlaintiffAppel-lant.
    (Court composed of Judge DENNIS R. BAGNERIS, SR., Judge TERRI F. LOVE, Judge LEON A. CANNIZZARO, JR.).
   TERRI F. LOVE, Judge.

ItThe defendant, Rudy Francis, was in-dieted for second degree murder, in violation of La. R.S. 14:30.1. The defendant filed a motion to quash the grand jury indictment alleging the State of Louisiana failed to bring this matter to trial within the time limitations set forth by the Louisiana Code of Criminal Procedure. After conducting an evidentiary hearing, the trial judge granted the motion to quash and dismissed the State’s indictment. We hold that the trial court erred in granting the motion to quash in that it was premature and therefore reverse the judgment of the trial court.

PROCEDURAL HISTORY

On October 30, 2003, the defendant was re-indicted for the crime of second degree murder. The defendant was arraigned and pled not guilty on November 18, 2003. A three-day jury trial was concluded on June 1, 2004, without a verdict being reached. According to the docket master, the defendant failed to appear at | ^several hearings following the mistrial. On December 16, 2004, the trial court issued a warrant for the defendant’s arrest. On March 8, 2005, the defendant appeared for a pre-trial conference. The warrant was withdrawn and trial was set for May 31, 2005. On that date, the trial was continued by the defense and reset for August 16, 2005. On that date, the case was continued on the court’s motion, and trial was set for February 3, 2006. During the interim, New Orleans was devastated by the effects of Hurricane Katrina on August 29, 2005.

Following Hurricane Katrina, a pre-trial conference was held on December 19, 2005, but the defendant did not appear in court. Although the trial date was set for February 3, 2006, the minute entry on that day reflects that a pre-trial conference was held instead. Again, the defendant did not appear and the pre-trial conference was rescheduled for February 14, 2006. Likewise, on that date, the defendant did not appear; furthermore, the record was unable to be located, and a pre-trial conference was set for March 31, 2006. On that date, the defendant appeared, and a trial date of November 13, 2006 was selected.

The November 13, 2006 trial was continued on the State’s motion. On November 28, 2006, the trial date of March 12, 2007 was selected. On March 9, 2007, the defendant filed a motion to quash the indictment, arguing that the time periods for institution of trial had expired. On March 12, 2007, the trial court conducted an evi-dentiary hearing on the motion, and the State presented the testimony of Beverly Richards, the former Jury Commissioner for Orleans Parish, and Eddie Jordan, the former Orleans Parish District Attorney. Following the hearing, the court heard argument on the matter.

UOn March 13, 2007, the trial court granted the defendant’s motion to quash and entered a per curiam. The State noticed its intent to appeal, and the trial court granted the motion for appeal.

STANDARD OF REVIEW

In State v. Campbell, 404 So.2d 956, 959 (La.1981), the Louisiana Supreme Court discussed appellate review in criminal matters as it relates to prescription as follows:

“Although the plea of prescription presented in a criminal case is a question of fact, it is not a question of fact relating to the guilt or innocence of the accused. The decision of the trial judge as to whether the offense charged is prescribed is reviewable by this court on the same facts upon which the decision was based.”
However, it is quite clear that in reviewing a trial judge’s ruling on a preliminary motion this court attaches great weight to his factual determinations and will not disturb them unless they are clearly erroneous. State v. Holley, 362 So.2d 1089 (La.1978).

State v. Campbell, 404 So.2d 956, 959, citing State v. Guillot, 200 La. 935, 9 So.2d 235 (1942).

MOTION TO QUASH

In its appeal, the State argues that the trial court’s ruling on defendant’s motion to quash should be reversed as the one-year limitation period for the commencement of defendant’s new trial imposed by La.Code Crim. Proc. art. 582 was interrupted by the effects of Hurricane Katrina on the criminal justice system. The State contends that the interruption ceased on June 5, 2006, when the first jury trial following Hurricane Katrina was held. Accordingly, the State contends that the limitation period would not have expired until June 5, 2007, and the granting of defendant’s motion to quash on March 13, 2007, came prior to the expiration of the limitation period.

| ¿La.Code Crim. Proc. art. 578 provides that trial of non-capital felony cases must commence within two years of the date of the institution of prosecution. Furthermore, La.Code Crim. Proc. art. 582 provides that when there is a mistrial, the State must commence the second trial within one year from the date the mistrial is ordered, or within the period established by art. 578, whichever is longer.

The limitation periods of articles 578 and 582 may be either suspended or interrupted. State v. Brooks, 505 So.2d 714 (La.1987). La.Code Crim. Proc. art. 580 provides that the period of limitation is suspended when a defendant files a motion to quash or other preliminary plea, “but in no case shall the State have less than one year after the ruling to commence the trial.” A motion for continuance filed by defendant is a preliminary plea under La. Code Crim. Proc. art. 580. State v. Fabacher, 362 So.2d 555 (La.1978); State v. Cranmer, 306 So.2d 698 (La.1975).

La.Code Crim. Proc. art. 579, relative to interruption of the time limitations upon the commencement of trial, provides in pertinent part:

A. The period of limitation established by Article 578 shall be interrupted if:
(1) The defendant cannot be tried because of insanity or because his presence for trial cannot be obtained by legal process, or for any other cause beyond the control of the state; or
(2) The defendant fails to appear at any proceeding pursuant to actual notice, proof of which appears of record.
B. The periods of limitation established by Article 578 shall commence to run anew from the date the cause of interruption no longer exists.

Furthermore, La.Code Crim. Proc. art. 583 governs the effect of an interruption following a mistrial as follows:

IfiThe period of limitation established by Article 582 shall be interrupted by any of the causes stated in Article 579. Where such interruption occurs, the state must commence the new trial within one year from the date the cause of interruption no longer exists.

In State v. Rome, 93-1221 (La.1/14/94), 630 So.2d 1284, the Supreme Court explained the mechanics of interruption and suspension as follows:

An interruption 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. The Louisiana Code of Criminal Procedure article 579(A)(2) provides in pertinent part that the two-year period of limitation will be interrupted if the defendant “cannot be tried because of insanity or because his presence for trial cannot be obtained by legal process, or for any other cause beyond the control of the state.” Once the cause of interruption disappears, the two-year time limit begins anew. See La.Code Crim. Proc. Ann. art. 579(B). In contrast, the prescriptive period is merely suspended, until the trial court rules on the filing of preliminary pleas. The relevant period is simply not counted, and the running of the time limit resumes when the motions are ruled on. Note, however, that “in no case shall the state have less than one year after the ruling to commence the trial.” La.Code Crim. Proc. Ann. art. 580.

Id., p. 4, 630 So.2d at 1287 (footnotes omitted).

In granting the defendant’s motion to quash, the trial court utilized March 8, 2005, the date when the defendant returned to court after failing to appear, as the starting point for its analysis. Pursuant to La.Code Crim. Proc. articles 583 and 579, the court concluded that the State had until March 8, 2006 to commence trial. Additionally, the court concluded that in addition to the one year period, the State should be afforded an additional ninety days pursuant to the Governor’s Executive Order KBB 2005-67. Accordingly, the trial court concluded that the State had until June 8, 2006 to commence trial.

In response to the State’s argument that Hurricane Katrina was an interruption upon trial pursuant to La.Code Crim. Proc. article 579, and that the interruption ceased on June 5, 2006, the trial court stated in a per curiam:

IfiThe district court finds that argument without merit....

Although Hurricane Katrina had a devastating effect on the operations of the criminal justice system, I do not believe that the district attorney’s office should receive any additional time extensions past the 90 days afforded to them by Governor Blanco’s executive order dated October 19, 2005. Since the Louisiana Criminal Code is silent on court closures due to a natural disaster, the Governor addressed this issue in her executive order. Therefore, the district attorney’s office should not be afforded ■any additional time for their prosecutions. As in this case, if the district attorney selected a trial date past the time limitations set out by La.C.Cr.P. Article 582, they do so at their, own detriment.

Subsequent to the issuance of the trial court’s per curiam, this Court decided State v. Brazile, 2006-1611 (La.App. 4 Cir. 5/30/07), 960 So.2d 333, writ denied, 07-1339 (La.1/7/08), 973 So.2d 733. In Bra-zile, this Court found that Hurricane Katrina was a cause beyond the control of the State that prevented the State from trying the defendant pursuant to the terms La. Code Crim. Proc. art. 579. In Brazile, we did not make a determination of when the interruption ceased, as the motion to quash was granted within two years of August 29, 2005. Nevertheless, in the case sub judice because the defendant’s first trial resulted in a mistrial,' this case is governed by La.Code Crim. Proc. article 583, which provides that trial must commence within one year from the date the cause of interruption no-longer exists. Accordingly, it is necessary to determine when the interruption ceased.

The State alleges that the date of the first jury trial in Criminal District Court following Hurricane Katrina (June 5, 2006) is the appropriate date for calculating the conclusion of the interruption. A review of the record from the March 31, 2006, pretrial conference reflects that the State requested the earliest trial date possible and informed the court that it was prepared to try the defendant in April, June or July of 2006. However, the trial court denied this request on the basis that defense counsel was unavailable.

_jjThe trial court essentially took the position that a trial could have been conducted much sooner than June 5, 2006, if only the State had made such an attempt. However, the State contends that the trial court’s assessment of what was feasible in the early months of 2006 is belied by the court’s own statements made during the March 31, 2006 pre-trial conferences. We note that based on the testimony and the record before us, that as of June 5, 2006, disruptions to the criminal justice system in Orleans Parish as a result of Hurricane Katrina ceased to exist such that the State could reasonably have seated a jury and conducted a trial. The transcript reflects that a letter was disseminated by the Chief Judge of the Orleans Parish Criminal District Court to the effect that “effective June 5th jury trials have resumed at Criminal District Court. Approximately 170 jurors have been selected to serve here.” Accordingly, June 5, 2006 was the date on which the period of interruption resulting from Hurricane Katrina ceased to exist. After reviewing the transcript of the evi-dentiary hearing in which the Orleans Parish Chief Judge of Criminal District Court, the District Attorney and Jury Commissioner testified, we find no evidence to support the assertion that criminal jury trials could have been conducted prior to June 5, 2006. Thus, the State was effectively prevented from trying the defendant at any point prior to June 5, 2006. Hurricane Katrina interrupted the limitations on trial pursuant to La.Code Crim. Proc. art. 579.

Further, the defendant’s case ended in a mistrial on June 1, 2004, as the jury was unable to reach a verdict. Therefore, under La.Code Crim. Proc. Art. 582, the State had until June 1, 2005 to bring the defendant to trial. However, on December | ¡¡16, 2004, a warrant was issued for the defendant’s arrest after the defendant failed to appear for a scheduled court appearance; the warrant was not recalled until March 8, 2005. Trial was then set for May 31, 2005. Thus, the interruption, which occurred due to the defendant’s failure to appear on December 16, 2004, ceased on March 8, 2005, when he appeared and was served with a subpoena for trial on May 31, 2005.

Therefore, the State had a year from March 8, 2005 within which to bring the defendant to trial, or until March 8, 2006. In the interim, on May 31, 2005, on the defense’s motion, the trial date was reset for August 16, 2005. The trial court’s analysis, however, failed to account for this May 31, 2005 defense continuance. This continuance acted as a suspension of the time limitation pursuant to La.Code Crim. Proc. art. 580, giving the State one year from August 16, 2005 within which to try the defendant, or until August 16, 2006.

Again, the trial was continued on August 16, 2005 by the trial court and the matter was rescheduled for February 6, 2006; the defendant was given notice of the February date in open court. The defendant failed to appear in February 2006, which was another interruption attributable to the defendant. The defendant next made an appearance on March 31, 2006. Therefore, the interruption did not cease until March 31, 2006, when the defendant made an appearance.

Pursuant to La.Code Crim. Proc. art. 580, the State had no less than one year from March 31, 2006, to commence trial, or until March 31, 2007. On March 31, 2006, the matter was set for trial on November 13, 2006, but on November 13, 2006, the matter was continued by the State until March 12, 2007. On that date, lathe trial court conducted a motion hearing. The trial court’s grant of the motion to quash on March 13, 2007 came before the expiration of the time limitations on trial, which was March 31, 2007. Therefore, the grant of defendant’s motion to quash on March 13, 2007 was premature.

The State had until March 31, 2007 to try the case given the defendant’s failure to appear in court in February 2006 and because the period of interruption did not cease to exist until March 31, 2007, when the defendant eventually appeared in court. We also take judicial notice of the Governor’s Executive Order (KBB 2005-67) as ratified by the Louisiana Supreme Court, which gives the State an additional 90 days. Thus, taking into account this 90-day extension, the State had until June 29, 2007 to commence trial. We, therefore, hold the trial court’s grant of the defendant’s motion to quash on March 13, 2007 was clearly erroneous.

DECREE

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

REVERSED.

      . La.Code Crim. Proc. art. 582 provides that in the event of a mistrial, the State must commence the second trial within one (1) year from the date the mistrial is ordered, or within the period established by La.Code Crim. Proc. art. 578, whichever is longer. Thus, thus State had one (1) year from June 1, 2004 to re-try Mr. Francis. For purposes of this discussion, we assume that one (1) year was longer than the remaining time on the original two (2) year period, which the State would have had pursuant to La.Code Crim. Proc. art. 578(2) to initially try Mr. Francis.

      . At the time of the evidentiary hearing, Ms. Beverly Richards was no longer serving as the Orleans Parish Jury Commissioner and Mr. Eddie Jordan was the Orleans Parish District Attorney.

      . The contemporaneous comments of the trial court that the effects of Hurricane Katrina on the criminal justice system were such that the State was effectively prevented from trying the defendant at any point prior to at least March 31, 2006. The trial judge stated, "And right now, we have not been able to — We have not had a jury trial yet. We are not equipped to actually handle a jury situation

      . As a result of Hurricane Katrina, the February 2006 date is changed sometime in December 2005 from a trial setting to a pre-trial conference, but, in any event, the defendant fails to appear in February 2006. This was another interruption.


source: Caselaw Access Project

author: JAMES F. McKAY III, Judge.

license: Public Domain

text:
    Paul MATLOCK, III, Paul Matlock, Jr. and Sebastian Melerine v. EAGLE GEOPHYSICAL ONSHORE, INC., Marine Transport System, Inc., and Water Safety Services.
    No. 2007-CA-0651.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 30, 2008.

      Louis R. Koerner, Jr., Koerner Law Firm, Houma, Louisiana, Kenneth W. Jacques, Law Offices of Kenneth W. Jacques, APLC, New Orleans, Louisiana, for Plaintiffs/Appellants.
    Bert M. Cass, Jr., Paul D. Hale, Joseph L. McReynolds, Deutsch, Kerrigan & Stiles, LLP, New Orleans, Louisiana, for Defendants/Appellees.
    (Court composed of Judge PATRICIA RIVET MURRAY, Judge JAMES F. McKAY III, Judge MAX N. TOBIAS, JR.).
   JAMES F. McKAY III, Judge.

hOn December 18, 2003, the plaintiffs, Paul Matlock, Jr., Paul Matlock, III, and Sebastian Melerine were in a boat, crabbing on the Shell Pile Bayou at Oak River in Braithwaite. The plaintiffs allege that another vessel, the Marine Transport System 2(MT2), passed them at a high rate of speed and created a large wake, throwing the plaintiffs about their boat; the plaintiffs allege that they suffered serious physical injuries and that they lost 17 crab traps and approximately 200 crabs as a result of the incident. The MT2 was owned by defendant, Marine Transport System, Inc. (MTS), and time chartered by defendant, Eagle Geophysical Onshore, Inc. (Eagle).

The plaintiffs filed a petition for damages, naming MTS and Eagle as defendants. Eagle filed a motion for summary judgment which the trial court granted on July 27, 2006. The plaintiffs filed an application for supervisory writs, which this Court denied with instructions for the trial court to consider the application as a timely filed motion for a devolutive appeal. On August 22, 2006, | athe trial court designated its judgment as a final judgment. It is from this judgment that the plaintiffs now appeal.

At issue in this appeal is whether the trial court properly granted Eagle’s motion for summary judgment.

Appellate courts review the granting of summary judgment de novo under the same criteria governing the trial court’s consideration of whether summary judgment is appropriate. Reynolds v. Select Properties, Ltd., 93-1480 (La.4/11/94), 634 So.2d 1180, 1182. The summary judgment procedure is designed to secure the just, speedy and inexpensive determination of actions. Two Feathers Enterprises v. First National Bank of Commerce, 98-0465, p. 3 (La.App. 4 Cir. 10/14/98), 720 So.2d 398, 400. This procedure is now favored and shall be construed to accomplish those ends. La. C.C.P. art. 966 A(2).

A summary judgment shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to a material fact, and that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966. If the court finds that a genuine issue of material fact exists, summary judgment must be rejected. Oakley v. Thebault, 96-0937 (La.App. 4 Cir. 11/13/96), 684 So.2d 488, 490. The burden does not shift to the party opposing summary judgment until the moving party first presents a prima facie case that no genuine issues of material fact exist. Id. At that point, the party opposing the motion must “make a showing sufficient to establish existence of proof of an element essential to his claim, |saction, or defense and on which he will bear the burden of proof at trial.” La. C.C.P. art. 966(C).

The uncontradicted testimony of Chris Conrad, the MTS boat captain, was that as captain he was solely responsible for the “navigation and upkeep of the vessel” and that none of Eagle’s employees ever operated or drove the boat nor were they allowed to. Mr. Conrad’s deposition testimony was confirmed by the affidavit of Michael Worsham, an independent contractor employed as Eagle’s safety director. Mr. Worsham attested that Eagle did not own, operate, navigate, or control the navigation of any of the MTS boats. The plaintiffs introduced no countervailing affidavits or deposition testimony to refute Eagle’s evidence.

Under maritime law, Eagle was a non-demise time charterer of the boat that was owned and operated by MTS. Under a time charter, the vessel remains under the possession and control of the vessel’s owners. This is in contrast to a bare boat or demise charter, in which there is a complete transfer of possession, command, and navigation of the vessel to the charterer. See Gaspard v. Diamond M. Drilling Co., 593 F.2d 605 (5th Cir.1979); Terre Auf Boeufs Land Co., Inc. v. J.R. Gray Barge Company, 2000-2754, p. 20 (La.App. 4 Cir. 11/14/01), 803 So.2d 86, 99-100.

As summarized by the United States Fifth Circuit in Hodgen v. Forest Oil Corp., 87 F.3d 1512, 1517 (5th Cir.1996), the maritime law recognizes that a time charterer has a “hybrid duty arising from tort and contract law to exercise the control the charter affords it over timing, route, and cargo of a vessel’s journey in a ^reasonably prudent manner.” However, this hybrid duty is limited to accidents that are in some way related to the charterer’s contractual right to direct when and where the vessel is to go. Moore v. Phillips Petroleum Co., 912 F.2d 789 (5th Cir.1990). Although a time charterer does direct the destinations of the vessel, he does not control the details of vessel operation required to reach those destinations. Forrester v. Ocean Marine Indemnity Co., 11 F.3d 1213, 1215 (5th Cir.1993). Therefore, how a captain navigates a ship or how a vessel owner maintains a ship’s seaworthiness is not within the ambit of the duty of a time charterer. In the instant case, the incident with the plaintiffs clearly involved how the captain navigated the vessel and Eagle had no duty regarding this operation.

Based on the law and facts of this case, we find that the trial court’s granting of Eagle’s motion for summary judgment was appropriate. Accordingly, the judgment of the trial court is affirmed.

AFFIRMED.

MURRAY, J., concurs and assigns reasons.

hi agree that under the particular circumstances presented in this case the time charterer, Eagle Geophysical Onshore, Inc., is not liable. There was no evidence that Eagle directed or in any way controlled the operation of the boat and thus it is not liable. See P & E Boat Rentals, Inc. v. Ennia General Ins. Co., 872 F.2d 642 (5th Cir.1989)(finding a time charterer liable for its own negligent acts).

      . 2006-C-1301


author: AMY, Judge.

text:
    Travis J. HAAS v. Ryan S. ROMERO, et al.
    No. 2007-974.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 20, 2008.

      Jerry A. Oubre, Caffery, Oubre, Campbell & Garrison, New Iberia, LA, for Defendants/Appellees, Louisiana Farm Bureau Casualty Insurance Company, Rodney Leleux.

      John W. Penny, Jr., Penny & Hardy, Lafayette, LA, for Defendants/Appellees, Allstate Insurance Company, Ryan S. Romero.
    Michael G. Gee, Porteus, Hainkel and Johnson, Thibodaux, LA, for Defendant/Appellee, Louisiana Farm Bureau Casualty Insurance Company.
    Matthew D. McConnell, Preis & Roy, Lafayette, LA, for Plaintiff/Appellant, Travis J. Haas.
    Court composed of JOHN D. SAUNDERS, MARC T. AMY, and BILLY HOWARD EZELL, Judges.
   AMY, Judge.

hThe plaintiff was injured when the truck in which he was traveling left the road and overturned. He filed suit against the other two occupants of the truck and their insurers. The identity of the truck’s driver was at issue when the matter proceeded to trial against one of the occupants and his insurer. A jury concluded that the plaintiff did not prove that the defendant was the driver. The plaintiff appeals. For the following reasons, we affirm. The defendant has answered the appeal and asks this court to cast all costs below against the plaintiff. On this limited basis, we amend the judgment below.

Factual and Procedural Background

The accident at issue occurred in March 2003, when a Ford F-150 truck carrying Travis Haas, Ryan Romero, and Rodney Leleux left the roadway on Louisiana Highway 14 near Delcambre, rolled over, and came in contact with a parked vehicle. The truck was owned by Mr. Romero and/or his father. Each of the three occupants sustained injury. Mr. Haas’s injuries included severe brain injury.

Mr. Haas filed the present suit, naming Mr. Romero and Mr. Leleux as defendants, as well as their insurers. He alleged that, due to the effects of his brain injury, he could not recall the identity of the driver and that further “court-assisted investigation is required to determine which defendant was the driver in the accident.” When the matter proceeded to trial, only Mr. Leleux and his insurer, Louisiana Farm Bureau Casualty Insurance Company, remained as defendants.

A jury found that, “more likely than not,” Mr. Leleux was not the driver of the truck at the time of the accident. The trial court’s judgment dismissed the plaintiffs claim in light of the jury’s verdict and ordered that each party pay its own costs incurred in the proceedings and that each share equally in the court reporter costs. laThe plaintiffs Motion for Annulment of Judgment or Alternative, for New Trial and/or JNOV was denied by the trial court.

The plaintiff appeals, first asserting that a number of legal errors warrant a de novo review. He also contends that the jury’s determination that Mr. Leleux was not driving the truck at the time of the accident was manifestly erroneous, again requiring de novo review.

Mr. Leleux and Farm Bureau have answered the appeal and argue that the judgment should be modified so as to assess all court costs with the plaintiff.

Discussion

Statement Given to State Trooper

At trial, Mr. Leleux testified that he had no recollection of the accident or being in the Romero truck on the day of the accident. He denied knowing whether he was the driver. In light of his testimony, the plaintiff contends that the trial court erred in permitting the investigating State Trooper, Master Trooper Jerry Overfelt, to testify as to Mr. Leleux’s purported statement at the scene indicating that he was the front-right seat passenger. As in his motion in limine, the plaintiff contends on appeal that Trooper Overfelt’s statement- constituted inadmissible hearsay. The trial court found the statement admissible as an excited utterance, explaining that the jury could assess the weight to be afforded any such statement in light of Mr. Leleux’s other statements regarding his location in the vehicle.

Louisiana Code of Evidence Article 801(C) defines hearsay as “a statement, other than one made by the declarant while testifying at the present trial or hearing, offered in evidence to prove the truth of the matter asserted.” Hearsay is not admissible unless provided for by the Louisiana Code of Evidence or other ^legislation. La.Code Evid. art. 802. Among the exceptions to the hearsay rule is that of an excited utterance, defined as “[a] statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.” La.Code Evid. art. 803(2).

Jurisprudence has identified time as the most important factor in determining whether a statement was made under the stress of a startling event. See State v. Jasper, 28,187 (La.App. 2 Cir. 6/26/96), 677 So.2d 553, writ denied, 96-1897 (La.2/21/97), 688 So.2d 521. “Other factors include whether the statement is self-serving or in response to an inquiry, whether the statement is expanded beyond a description of events to include past or future facts, and whether the declarant performed tasks requiring reflective thought between the event and the statement.” Id. at 563.

The record reveals no error in the trial court’s ruling as .to Mr. Leleux’s statement to Trooper Overfelt. Although the Trooper did not arrive at the scene until approximately twenty minutes after the accident, the facts support a determination that Mr. Leleux was under the stress of excitement caused by the event. Records from ambulance personnel indicate that Mr. Leleux was disoriented at the scene. Emergency room records indicate a loss of consciousness at the scene, a collapsed lung, a fractured spleen, as well as fractures to his clavicle and right forearm. They also report he had an elevated alcohol level. It is reasonable to find that these conditions renderéd the time period between the accident and the statement to Trooper Overfelt sufficiently limited so as prohibit reflective thought. Accordingly, |4the trial court did not err in permitting the introduction of the .statement of Trooper Overfelt.

Trooper Overfelt’s Conclusions

The plaintiff next objects to Trooper Overfelt’s testimony indicating that evidence at the scene was consistent with Mr. Leleux’s statement to him that he was in the right front seat of the truck at the time of the accident. The plaintiff asserts that it was prejudicial error to permit a non-expert to offer such a conclusion. He asserts that the conclusion was particularly unreliable given Trooper Overfelt’s inability to recall particular evidence supporting his determination.

Louisiana Code of Evidence Article 701 permits lay witnesses to offer testimony in the form of opinions or inferences if such testimony is 1) rationally based on the perception of the witness and is 2) helpful to a clear understanding of his or her testimony or the determination of a fact in issue. A trial court is afforded broad discretion in permitting testimony of a lay witness in accordance with Article 701. Eldridge v. Carrier, 04-203 (La.App. 3 Cir. 11/17/04), 888 So.2d 365, writ denied, 04-3174 (La.3/11/05), 896 So.2d 66; La.Code Evid. art. 701, comment b. In ruling on this issue, the trial court remarked that, although Trooper Overfelt was not tendered as an expert, the jury would be able to assess the weight of his investigative conclusions given his field experience. We find no abuse of discretion in this determination.

Trooper Overfelt explained that, although not a certified accident reconstruc-tionist, he had investigated thousands of vehicle accidents during his twenty-five years of experience as a State Trooper. He testified as to his arrival at the | 5scene, reviewed the details of his crash report, and explained that he identified the point at which the Romero truck impacted a parked vehicle before coming to rest. When asked why he had identified Mr. Leleux as the right front passenger in the report, he denied that it was based on Mr. Leleux’s statement alone, stating that he believed it was based on evidence at the scene, including “[wjhere the impact occurred, the way it occurred, when it struck the Vehicle Number 2.” He admitted that he did not “recall exactly what it was.” He further explained that he never determined which of the three men was the driver of the vehicle.

The record supports the conclusion that Trooper Overfelt’s conclusions were based on his rational perception of the scene as is required by Article 701. Any weight afforded to the statement was within the province of the jury. The jury could have assessed Trooper Overfelt’s report in light of his years of experience, his view that the accident scene generally supported Mr. Leleux’s statement as to his location in the truck, and his ultimate inability to identify the truck’s driver.

Jury Charge

The plaintiff asserts that the trial court’s failure to include his preferred jury instruction as to circumstantial and direct evidence resulted in legal error. He contends that failure to include these definitions in the closing instructions left the jury without guidance in evaluating Mr. Leleux’s claim in closing argument that he had superior direct evidence.

Louisiana Code of Civil Procedure Article 1792(B) provides that “[ajfter the trial of the case and the presentation of all evidence and arguments, the court shall instruct the jurors on the law applicable to the cause submitted to them.” While the trial court must correctly advise the jury of applicable law, it is not required to use the | r,specific wording preferred by the parties. Scott v. Dauterive Hosp. Corp., 02-1364 (La.App. 3 Cir. 4/23/03), 851 So.2d 1152, writ denied, 03-2005 (La.10/31/03), 857 So.2d 487. A trial court has broad discretion in formulating its jury instructions. Nicholas v. Allstate Ins. Co., 99-2522 (La.8/31/00), 765 So.2d 1017. On appeal, great restraint is exercised before a jury verdict is reversed due to an erroneous instruction. Id.

Reviewing the jury instructions as a whole, we find no abuse of discretion in the trial court’s choice of instructions. Rather, the instructions fairly and reasonably explained the plaintiffs burden of proof, the jurors’ responsibility to evaluate the credibility of and weigh aspects of the evidence, and considerations relevant to witness testimony. Although the instructions did not include the additional, preferred instruction regarding direct and circumstantial evidence, the instructions provided “law applicable to the cause submitted” as is required by Article 1792.

Unavailability of Trooper Overfelt

Due to a purported inability to contact Trooper Overfelt prior to trial, the defendants introduced his deposition. In the plaintiffs post-trial motion for annulment of judgment, new trial, and/or JNOY, he asserted that, contrary to the defendants’ assertions, the court-appointed process server was able to serve Trooper Overfelt with a subpoena on the first day of trial. Despite this service, the plaintiff claimed he did not become aware of that fact until after the deposition was read to the jury. He argues that he was, therefore, unable to assert that the witness was available. The trial court denied the plaintiffs motion insofar as it prayed for a new trial and/or JNOY and granted the defendants’ exception of unauthorized use of summary | ^proceedings with regard to annulment of the judgment. On appeal, the plaintiff reurges his argument regarding the unavailability of Trooper Overfelt.

Having reviewed the parties’ post-trial filings, we find no error in the denial of either the motion for new trial and/or JNOV. Louisiana Code df Civil Procedure Article 1450(A) provides, in part:

A. At the trial or upon the hearing of a motion or an interlocutory proceeding, any part or all of a deposition, so far as admissible under the Louisiana Code of Evidence applied as though the witnesses were then present and testifying, may be used against any party who was present or represented at the taking of the deposition or who had reasonable notice thereof, in accordance with any of the following provisions:
(3) The deposition of a witness, whether or not a party, may be used by any party for any purpose if the court finds:
(a) That the witness is unavailable!)]

Article 804(A) of the Louisiana Code of Evidence indicates that a witness is unavailable when he or she “cannot or will not appear in court and testify to the substance of his statement made outside of court.” This includes situations in which the witness “[i]s absent from the hearing and the proponent of his statement has been unable to procure his attendance by process or other reasonable means.” La. Code Evid. art. 804(A)(5). It does not however, include a witness “if his exemption, refusal, claim of -lack of memory, inability, or absence is due to the procurement or wrong-doing of the proponent of his statement for the purpose of preventing the witness from attending or testifying.” Id.

In support of his motions, the plaintiff presented an affidavit of the process server indicating that he served the subpoena on Trooper Overfelt on the afternoon of August 8, 2006, the first day of trial, and that he immediately notified his ^[¿principals. He also explained that the witness “attempted to avoid service, which resulted in delay.” The subpoena, which was also submitted, notified the witness that he was being summoned to court on August 7th, the day prior to the date of service. Trooper Overfelt’s deposition was read into the record oh August 10th. The defendants responded to the plaintiffs motion with evidence indicating numerous attempts to notify and/or subpoena Trooper Overfelt. The defendants also had the process server appointed by the court. This evidence was presented to the trial court at the time of the post-trial ruling. Given the evident difficulty in procuring Trooper Overfelt’s presence and the trial court’s awareness that he did not present himself at trial, it was not required to find that a new trial was required.

This assignment lacks merit.

Merits

Finally, the plaintiff contends that the determination that Mr. Leleux was not the driver of the truck at the time of the accident was manifestly erroneous, requiring a reversal of verdict. He points to witnesses who testified that they saw Mr. Leleux driving the Romero truck several hours before the accident and that testimony also supported a view that Mr. Leleux regularly drove the truck. The plaintiff further suggests that the evidence demonstrated that Mr. Leleux had the lowest amount of alcohol in his system upon testing. His brief suggests “[i]n short, Leleux was more likely the driver.”

As pointed out in the plaintiffs brief, certain evidence may have permitted the jury to identify Mr. Leleux as the driver. However, the evidence was not of a nature so as to require the jury to find that he was more probably than not the driver. Rather, the jury heard that the three men could recall very little, if anything, about the events, [anone could definitively state which occupant was the driver, and no witness identified the driver at the time of the event. Simply, and in addition to any assessments of witness credibility, the jury could have concluded that the vague accounting of the accident did not permit a determination that Mr. Leleux was the driver of the vehicle. Its determination is not manifestly erroneous.

Answer

In their answer to the appeal, the defendants point out that the jury returned a verdict in their favor and that plaintiffs claims were dismissed. However, the trial court ordered that the parties pay their own costs associated with the proceeding and assessed each with an equal share of the court reporter costs.

Louisiana Code of Civil Procedure Article 1920 provides that “[e]xcept as otherwise provided by law, the court may render judgment for costs, or any part thereof, against any party, as it may consider equitable.” A trial court’s assessment of costs will not be disturbed absent an abuse of discretion. Ford v. State Dept. of Public Safety, 00-1546 (La.App. 3 Cir. 6/5/02), 819 So.2d 1156. “However, jurisprudence has also established that when a prevailing party is taxed with the costs of litigation, it is usually because the party in some way incurred additional costs pointlessly or engaged in other conduct which justified an assessment of costs against that litigant.” Id. at 1157 (citing Henderson v. Louisiana Downs, Inc., 566 So.2d 1059 (La.App. 2 Cir.), writ denied, 569 So.2d 984 (La.1990)).

The plaintiff did not prevail on his claim against the defendants. Nor does the record 'demonstrate that the defendants caused additional costs to be incurred. The record does not contain any indication on what the assessment of costs to the defendants was based. Thus, we find that the apportionment of any costs to the | mdefendants is not supported by the record. We amend the judgment to reflect assessment of all costs to the plaintiff.

DECREE

For the foregoing reasons, the trial court’s judgment in favor of the defendants is affirmed. However, its assessment of costs below is amended to reflect that all costs of the proceeding below are assessed to the plaintiff, Travis Haas. Furthermore, all costs of this appeal are assigned to Mr. Haas.

AFFIRMED AS AMENDED.

      . See State v. Beason, 26,725 (La.App. 2 Cir. 4/7/95), 653 So.2d 1274, writ denied, 95-1388 (La.10/27/95), 661 So.2d 1359 (wherein a statement made twenty-five to thirty minutes after an automobile accident was found to be an excited utterance given the declarant’s injuries and lack of indication that he performed tasks requiring reflective thought during that time). But see State v. Richardson, 97-1995 (La.App. 4 Cir. 3/3/99), 729 So.2d 114, 122-23, writ denied, 99-1087 (La.9/24/99), 747 So.2d 1119 (wherein a statement to a police officer approximately ten minutes after the speaker was physically assaulted was determined not to be an excited utterance as the declarant had “minutes in which to calm down a little.”)


author: GASKINS, J. MOORE, J,

text:
    STATE of Louisiana, Appellee v. Greg COLEMAN, Appellant.
    No. 42,953-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Feb. 20, 2008.
    Rehearing Denied March 13, 2008.
    Ronald J. Miciotto, Shreveport, for Appellant.
    Walter E. May, Jr., District Attorney, Kenneth P. Haines, Assistant District Attorney, James Richard Sterrit, Cook, Yan-cy, King & Galloway, for Appellee.
    Before GASKINS, DREW and MOORE, JJ.
   GASKINS, J.

liThe State of Louisiana, through the Jackson Parish District Attorney’s office, appeals a trial court judgment refusing to annul an expungement and dismissal of Greg Coleman’s conviction for four counts of carnal knowledge of a juvenile. For the following reasons, we affirm the trial court judgment.

FACTS

In June 1995, Greg Coleman entered a plea of nolo contendere to four counts of carnal knowledge of a juvenile, a violation of La. R.S. 14:80. The record indicates that the defendant, his attorney, and the trial court anticipated that the plea would be made pursuant to La. C. Cr. P. art. 893, in which the trial court could suspend and/or defer sentencing and dismiss the convictions after the successful completion of a period of probation. The trial court noted that it was not sure that the terms of La. C. Cr. P. art. 893 would apply to the defendant’s case. Mr. Coleman agreed that if the statute was not applicable, it would not void his plea.

Mr. Coleman was sentenced to serve 24 months at hard labor on each count and the sentences were suspended. He was put on supervised probation for one year. After completion of the probationary period and, pursuant to an application by the defendant’s attorney, the trial court signed an order setting aside the convictions, dismissing the prosecution pursuant to La. C. Cr. P. art. 893 and expunging the record. The order was signed on June 20, 1996. No contradictory hearing was held prior to the entry of the order.

|2On October 6, 2006, the state filed a motion to set aside the dismissal and ex-pungement. The state urged that La. C. Cr. P. art. 893, as it existed at the time of the defendant’s plea, did not allow the deferral of a sentence and dismissal of a conviction for sex offenses like those in the present case. The state also claimed that it was never served with notice of the expungement and no contradictory hearing was held prior to the expungement, as required by law. The state argued that the lower court’s action was improper and should be vacated and set aside.

In November 2006, Mr. Coleman filed a peremptory exception of no cause of action and an objection to the motion to set aside the dismissal of his conviction. He claimed that the state’s pleading failed to state a cause of action against him. He noted that this matter was raised more than 10 years after the plea was entered and expunged.

In March 2007, the state filed a petition to declare the June 1996 order of dismissal an absolute nullity and to supplement the motion to set aside the dismissal. The state again claimed that sex offenses are not subject to dismissal and expungement, no notice was given to the state prior to the order of dismissal and expungement, and no contradictory hearing was held. The state urged that it is an interested party because it should have been given notice and a contradictory hearing was required before entry of the order of dismissal.

|SA hearing was held in which the parties stipulated that the order of dismissal and expungement entered in 1996 was not the result of a contradictory hearing. The plea of nolo contendere was admitted by stipulation and the parties agreed to keep the record under seal. The state argued that La. C. Cr. P. art. 893, as it existed in 1995, and as it is presently written, does not provide for dismissal of a conviction for a sex offense. Because of that fact, and because there was no contradictory hearing before the trial court signed the order of dismissal and expungement, the state urged that the order is an absolute nullity and is without effect.

In July 2007, the trial court entered a judgment dismissing with prejudice the state’s petition to declare null the dismissal and expungement of the prior convictions. The state appealed.

DISMISSAL OF CONVICTIONS

At the time of the offenses, La. R.S. 14:80 specified as follows:

A. Carnal knowledge of a juvenile is committed when:
(1) A male over the age of seventeen has sexual intercourse, with consent, with any unmarried female of the age of twelve years or more, but under the age of seventeen years, when there is an age difference of greater than two years between the two persons; or
(2) A person over the age of seventeen has anal or oral sexual intercourse, with consent, with a person of the age of twelve years or more, but under the age of seventeen years, when there is an age difference of greater than two years between the two persons.
B. Lack of knowledge of the juvenile’s age shall not be a defense. Emission is not necessary; and penetration, however slight, is sufficient to complete the crime.
C. Whoever commits the crime of carnal knowledge of a juvenile shall be imprisoned, with or without hard labor, for not more than ten years, provided that the defendant shall not be eligible to have his conviction set aside or his prosecution \Adismissed in accordance with the provisions of Code of Criminal Procedure Article 893. [Emphasis supplied.]

Suspension of the sentence and probation in felony cases is governed by La. C. Cr. P. art. 893. At the time of Mr. Coleman’s plea of nolo contendere in June 1995, that statute provided:

A. When it appears that the best interest of the public and of the defendant will be served, the court, after a first or second conviction of a noncapital felony, may suspend, in whole or in part, the imposition or execution of either or both sentences, where suspension is allowed under the law, and in either or both cases place the defendant on probation under the supervision of the division of probation and parole. The court shall not suspend the sentence of a second conviction if the second conviction is for a crime of violence as defined in R.S. 14:2(13)(a), (b), (c), (d), (e), (i), 0), (k), (i), (m), (n), (o), (p), (q), (r), (t), (v), (w), or (x), R.S. 14:73.5, R.S. 14:81.1, or R.S. 14:81.2, or for a violation of the Uniform Controlled Dangerous Substances Law punishable by a term of imprisonment for more than five years. The period of probation shall be specified and shall not be less than one year nor more than five years. The suspended sentence shall be regarded as a sentence for the purpose of granting or denying a new trial or appeal.
D.When the imposition of sentence has been suspended by the court for the first conviction only, as authorized by this Article, and the court finds at the conclusion of the probationary period that the probation of the defendant has been satisfactory, the court may set the conviction aside and dismiss the prosecution, except for a conviction of a sex offense as defined by R.S. 15:5J¡.2(E), involving a child under the age of seventeen years. The dismissal of the prosecution shall have the same effect as acquittal, except that said conviction may be considered as a first offense and provide the basis for subsequent prosecution of the party as a multiple offender, and further shall be considered as a first offense for purposes of any other law or laws relating to cumulation of offenses. Dismissal under this Paragraph shall occur only once with respect to any person. [Emphasis supplied.]
|SE. Nothing contained herein shall be construed as being a basis for destruction of records of the arrest and prosecution of any person convicted of a felony-

In 1995, the legislature repealed former Paragraph D, effective August 15, 1995. In 1996, the legislature amended La. C. Cr. P. art. 893 to enact a new Paragraph D, introducing the concept of deferment of the imposition of sentence after conviction of a first offense noncapital felony and dismissal of the conviction after successful completion of probation. The amendment was retroactively effective to August 15, 1995, the effective date of the repeal of the former Paragraph D. The new Paragraph D provided:

D. (1) When it appears that the best interest of the public and of the defendant will be served, the court may defer, in whole or in part, the imposition of a sentence after conviction of a first offense noncapital felony under the conditions set forth in this Paragraph. When a conviction is entered under this Paragraph, the court may defer the imposition of sentence and place the defendant on probation under the supervision of the division of probation and parole. The court shall not defer a sentence under this provision for an offense which is defined as a crime of violence under R.S. 14:2(13) or a sex offense as defined by R.S. 15:5J/.2(E), involving a child under the age of seventeen years or for a violation of the Uniform Controlled Dangerous Substances Law punishable by a term of imprisonment of more than five years or for a violation of R.S. 40:966(A), 967(A), 968(A), 969(A), or 970(A).
(2) Upon motion of the defendant, if the court finds at the conclusion of the probationary period that the probation of the defendant has been satisfactory, the court may set the conviction aside and dismiss the prosecution. The dismissal of the prosecution shall have the same effect as acquittal, except that the conviction may be considered as a first offense and provide the basis for subsequent prosecution of the party as a multiple offender, and further shall be considered as a first offense for purposes of any other law or laws relating to [fiCumulation of offenses. Dismissal under this Paragraph shall occur only once with respect to any person. [Emphasis supplied.]

At the time of the entry of Mr. Coleman’s plea, the facts of the offense were set forth. The plea colloquy shows that the offenses in this case were committed against a victim between the ages of 12 and 17. Therefore, the elements of the offenses comport with the provisions of La.C.Cr.P. art. 893 which prohibited deferral or dismissal of convictions for sex offenses involving a child under the age of 17.

It is clear that, at the time Mr. Coleman pled nolo contendere to the four counts of carnal knowledge of a juvenile at issue here, and at the time the trial court signed the order of dismissal and expungement, the law did not provide for the application of La. C. Cr. P. art. 893 to those offenses.

The following exchange took place during the plea colloquy:

I want to make sure your plea is voluntary. Mr. Coleman, the — my understanding is that under [the] plea agreement which you’ve reached that I would — if I accept your plea I’ll sentence you to 24 months at hard labor. I’ll suspend that and place you upon supervised probation for a period of one year. I’m going to place — -and I’m also going to impose the provisions of the Code of Criminal Procedure, Article 893. But you need to understand there’s some question as [to] whether or not I can do that, do you understand that? Has your attorney explained that to you?
BY THE DEFENDANT:
Yes sir, he has.
17BY THE COURT:
And it’s not going to [a]ffect the validity of this plea if later the benefit of 893 is not afforded you, do you understand that?
BY THE DEFENDANT:
Yes sir.

This exchange shows that the state was present at the time the trial court stated its intent to use La. C. Cr. P. art. 893 in sentencing Mr. Coleman. The state made no objection at that time and took no appeal. On June 20, 1996, the court entered the following order:

Upon motion by defendant, appearing through undersigned counsel, upon showing that the defendant entered a plea of no contest on June 19, 1995 to carnal knowledge of a juvenile under the provisions of Article 893 of the Louisiana Code of Criminal Procedure; upon further showing that the defendant has not been convicted of any other offense during the period of the suspended sentence and that no criminal charges are presently pending against him:
IT IS THEREFORE ORDERED, ADJUDGED AND DECREED that the conviction herein be and same is hereby set aside and the prosecution dismissed.
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the Clerk of Court of Jackson Parish and the Sheriff of Jackson Parish, the Louisiana State Police and the Federal Bureau of Investigation be and they are hereby ordered and directed to expunge said conviction from their records. [Emphasis original.]

The record also shows that, on January 7, 1998, Mr. Coleman’s lawyer contacted the Jackson Parish District Attorney regarding the dismissal and expungement order that had been entered in 1996. Mr. Coleman’s lawyer sent a letter to the district attorney which specified, in pertinent part:

|SI herewith hand you a copy of the order in question in case you do not have it. After the one year probation ran out, I presented an ex parte order to Judge Whitten as I normally do in a case like this and it was signed by him. When it went to Baton Rouge, after about a year I was contacted by an attorney for the Department of Public Safety & Corrections saying that in order for them to expunge the record in Baton Rouge, that both you and the sheriff had to sign off on it.
Back in 1995 you had no problem with the Article 898. I am just trying to do what Article 893, in my estimation, allows us to do.
If you do not feel inclined to sign off on it we will have to file and have a court hearing on same.
Your cooperation would be greatly appreciated.

On May 28, 1998, the district attorney responded with a letter which provided in pertinent part:

I apologize for not getting back to you sooner. Quite frankly, I did not want to respond, because I did not want to give you a negative response. I guess I felt that if I just didn’t do anything I might be able to figure out some way to assist the defendant.
Unfortunately, I can not come up with any manner in which I can assist the defendant.
I had previously understood you to have indicated that at the time the defendant [pled] guilty there was some agreement that he would be sentenced under Article 894[sic], or something of that nature. [The assistant district attorney] has no recollection of any such agreement, I have no recollection of any such agreement, and there is nothing in the file in that regard.
If I understand what you are asking me in this case I don’t know of any historical precedent for the District Attorney participating in an expungement of a record of this nature, nor am I aware of any bases for your filing a motion.
If I am not understanding what you want, please call me. I am not going to participate in any motion to amend the sentence “after the fact.”

13These facts show that the state was present in court at the time of the plea and was fully aware of the trial court’s intent to apply La. C. Cr. P. art. 893 to this case. The state remained silent and made no objection at that time. Further, in 1998, when the Jackson Parish District Attorney was contacted by Mr. Coleman’s lawyer regarding the dismissal and expungement, no action was taken. At all relevant times when the state could have objected to the use of La. C. Cr. P. art. 893 or timely appealed, the state acquiesced.

The trial court’s use of La. C. Cr. P. art. 893 amounts to the imposition of an illegally lenient sentence. The methods for the state to seek review of an illegal sentence are set forth in La. C. Cr. P. art. 881.2 and 882. Under those provisions, the state may appeal or seek review of a sentence if the sentence imposed was not in conformity with the mandatory provisions of the statute under which the defendant was convicted or any other mandatory sentence provision, and if the state objected at the time the sentence was imposed or made or filed a motion to reconsider the sentence.

A sentence may be reviewed as to its legality on the application of the defendant or the state in an appealable case by appeal, or in an unappealable case, by writs of certiorari and prohibition.

La. C. Cr. P. art. 882 provides that an illegal sentence may be corrected at any time by the court that imposed the sentence or by an appellate court on review. However, the reviewing court is not required to correct such a sentence. State v. Griffin, 41,946 (La.App. 2d Cir.5/2/07), 956 So.2d 199; State v. Jones, 42,531 (La.App. 2d Cir.11/7/07), 968 So.2d 1247. Under the facts of this matter, in which the state remained silent at |inthe time of the plea while the trial court expressed its intention to apply the provisions of La. C. Cr. P. art. 893, coupled with the failure by the state to actively oppose the dismissal and expungement when it became aware of those facts in 1998, we decline to now consider the state’s claim, 10 years later, that the sentence is illegally lenient. We find that the trial court in the present civil suit was well within its discretionary parameters when it refused to amend this illegally lenient sentence.

EXPUNGEMENT

Expungement is governed by La. R.S. 44:9. At the time the trial court entered its order to dismiss the convictions and expunge the record of these convictions, that statute provided in pertinent part:

B. (1) Any person who has been arrested for the violation of a felony offense or who has been arrested for a violation of R.S. 14:34.2, R.S. 14:34.3, or R.S. 14:37 may make a iwitten motion to the district court for the parish in which he was arrested for the expungement of the arrest record if:
(a) The district attorney declines to prosecute, or the prosecution has been instituted, and such proceedings have been finally disposed of by acquittal, dismissal, or sustaining a motion to quash; and
(b) The record of arrest and prosecution for the offense is without substantial probative value as a prior act for any subsequent prosecution.
(2) If, after a contradictory hearing with the district attorney and the arresting law enforcement agency, the court finds that the mover is entitled to the relief sought for the above reasons, it shall order all law enforcement agencies to expunge the record of the same in accordance herewith. However, nothing in this Paragraph shall limit or impede the authority under law to consider prior arrests or convictions in pursuing prosecution under multiple offender provisions or impede the investigation of any law enforcement official seeking to ascertain or confirm the qualifications of any person for any privilege or license authorized by law.
InE. (1) No court shall order the destruction of any record of the arrest and prosecution of any person convicted of a felony, including a conviction dismissed pursuant to Article 893 of the Code of Criminal Procedure, except after a contradictory hearing with the district attorney and the arresting law enforcement agency.
(2) No court shall order the expungement or destruction of any record of the arrest and prosecution of any person convicted of a sex offense as defined by R.S. 15:5I2(E), involving a child under the age of seventeen years, except after a contradictory hearing with the district attorney and the arresting law enforcement. agency. The provisions of this Paragraph shall apply to all records of any proceedings, order, judgment, or other action under Code of Criminal Procedure Article 893. [Emphasis supplied.]

In State v. Labauve, 2005-1273 (La.App. 1st Cir.9/20/06), 943 So.2d 1186, writ denied, 2006-2525 (La.12/15/06), 945 So.2d 694, the first circuit considered the argument that a defendant was not entitled to have a felony conviction of carnal knowledge of a juvenile expunged. The defendant, who was 21 years old at the time of the occurrence, was indicted on one count of carnal knowledge of a juvenile for having sexual 112intercourse with a 15-year-old female. The defendant pled guilty to the charge in March 2000. The defendant received a two-year suspended sentence and was placed on supervised probation for five years.

Four years later, in May 2004, the defendant appeared before the court, withdrew his plea of guilty to felony carnal knowledge of a juvenile and entered a plea of guilty to misdemeanor carnal knowledge of a juvenile. The court ordered a six-month suspended sentence and ordered that the record from the felony plea be stricken from the record.

The defendant filed a motion to expunge the record. The order was granted by the trial court. In February 2005, the defendant filed a rule to show cause why the Louisiana State Police should not act on the expungement. The court again ordered expungement of the record and the State Police appealed contesting the trial court’s action in allowing withdrawal of the original guilty plea, entry of a new plea, and ordering expungement of the record.

The first circuit found that the original plea was withdrawn due to a perceived constitutional deficiency, not under the provisions of La. C. Cr. P. art. 893. The first circuit also noted that La. R.S. 44:9 does not allow expungement of the record of convictions for sex offenses involving a child under the age of 17.' The court found that the trial court erred in ordering the destruction of all records pertaining to the defendant’s arrest and conviction for felony carnal knowledge of a juvenile.

Lain State v. Daniel, 39,633 (La.App. 2d Cir.5/25/05), 903 So.2d 644, this court found that where a defendant was not entitled to have his criminal record expunged, the trial court’s order of expungement was an absolute nullity. In September 2000, the defendant entered a plea of guilty to carnal knowledge of a juvenile. When the defendant was 18 years old, he had sexual intercourse with a 15-year-old female. The trial court ordered the defendant to serve two years at hard labor, suspended the sentence, and placed the defendant on active, supervised probation for two years. The court specified that the defendant did not have to register and report as a sex offender. In May 2004, when the defendant learned that he had been included in the State Sex Offender and Child Predator Registry, he moved to expunge the record. The motion was tried contradictorily with the district attorney’s office and the sheriffs office. The trial court granted the motion. In September 2004, the Department of Public Safety (DPS) filed a petition to annul the judgment of expungement, arguing that, because the defendant was convicted of a sex offense involving a child under the age of 17, the judgment was contrary to law and obtained by fraud or ill practices. This 114conrt found that the DPS had standing to object to the expungement order and ruled that the expungement order was an absolute nullity.

We find the facts of the present case distinguishable from those of prior jurisprudence finding that expungement of the record of a conviction for carnal knowledge of a juvenile is an absolute nullity. In the present case, the state became aware of the expungement order in 1998, but did not object until 2006. Although we hesitate to blur the lines between civil and criminal proceedings, the state instituted this matter as a civil proceeding. La. C.C.P. art. 2003 provides that a defendant who acquiesced in the judgment, or who was present in the parish at the time of its execution and did not attempt to enjoin its enforcement, may not annul the judgment on any of the grounds for an absolute nullity-listed in La. C.C.P. art. 2002. Under these circumstances, where the state was notified of the expungement and did not attempt to enjoin its enforcement, it cannot be heard to object now, almost a decade later.

CONCLUSION

For the reasons stated above, we affirm the trial court judgment denying the motion of the state seeking to annul the dismissal and expungement of the convictions of Greg Coleman for four counts of carnal knowledge of a juvenile.

AFFIRMED.

MOORE, J., concurs with written reasons.

MOORE, J,

concurs.

hi concur in the analysis and result of the majority, but write separately to express my serious concern that this deferred sentence, dismissal without contradictory hearing, and expungement of the record were all in violation of the applicable statutes. In ordinary circumstances, these illegal acts should have no effect whatsoever and the state should be able to nullify them. However, the prosecutor and defense counsel agreed to a sentence which, although illegal, was accepted in toto by the trial judge. The finality of judgments and the normal reliance on negotiated resolutions militate in favor of upholding the instant sentence, dismissal and expungement. Also, the prosecutor’s 11-year delay in seeking to rectify these acts is, in my view, simply unconscionable. The state’s failure to act in 1998, when it was fully aware of the motion to dismiss, makes its current position disingenuous at best. On this record, the trial court did not abuse its discretion in denying, the motion to set aside the dismissal and ex-pungement.

APPLICATION FOR REHEARING

Before BROWN, GASKINS, PEATROSS, DREW and MOORE, JJ.

Rehearing denied.

      . Even though La. C. Cr. P. art. 893 has been amended since the entry of the plea in this matter, it still provides that deferral and dismissal of a conviction for sex offenses, such as carnal knowledge of a juvenile, where the victim is under the age of 17, is not available.

      . See Acts 1995, No. 1251; In re Elloie, 2005-1499 (La.1/19/06), 921 So.2d 882.

      . See Acts 1996, 1st Ex.Sess., No. 5; In re Elloie, supra.

      . La.C.Cr.P. art. 893 was later amended in pertinent part to provide that the court shall not defer a sentence for an offense or attempted offense defined or enumerated as a sex offense as defined by La. R.S. 15:541(14.1), involving a child under the age of 17. This provision still includes carnal knowledge of a juvenile.

      . We note that, at the time Mr. Coleman entered his plea, La. R.S. 44:9(B) provided:
      B. Any criminal court of record in which there was a nolle prosequi, an acquittal, or dismissal of any offense, whether misde-meaner or felony, shall at the time of discharge of a person from its control, enter an order annulling, canceling, or rescinding the record of arrest, and disposition, and further ordering the destruction of the arrest record and order of disposition. Upon the entry of such an order the person against whom the arrest has been entered shall be restored to all civil rights lost or suspended by virtue of the arrest, unless otherwise provided in this Section, and shall be treated in all respects as not having been arrested.
      This provision did not require a contradictory hearing with the district attorney prior to expungement. Pursuant to Acts 1995, No. 1251, § 3, paragraph B of the statute was repealed. However, Acts 1996, 1st Ex.Sess., No. 5, reenacted paragraph B, set forth above, to require a contradictory hearing, with the district attorney and the arresting law enforcement agency prior to the entry of an order for expungement of the record. The Act further provided that it had retroactive effect back to August 15, 1995, the effective date of the repeal of Paragraph B. The instability in the provisions regarding the method for expungement during this time period may account for the trial court’s decision to enter an ex parte order in this case.

      . La. R.S. 44:9 was amended by Acts 1999, No. 1111, § 1. The amendment rewrote subsection E to provide that no court shall order the expungement or destruction of any record of the arrest or prosecution of any person convicted of a sex offense as defined by La. R.S. 15:541(14.1), involving a child under the age of 17 years.

      . See and compare State v. Jackson, 41,179 (La.App. 2d Cir.6/28/06), 935 So.2d 319, in which this court held that the Department of Public Safety and Corrections, Office of State Police, Bureau of Criminal Identification and Information (Bureau) did not have standing to bring a civil nullity action challenging a criminal court judgment vacating a plea of contributing to the delinquency of a juvenile and accepting a guilty plea to misdemeanor carnal knowledge of a juvenile. Jackson was distinguished from Daniel in that Jackson did not concern the destruction of public records or expungement of criminal records. We stated that the judgment in Jackson did not impinge upon the Bureau's duty to establish and maintain a central repository of criminal history record information and a central registry of sex offenders. Jackson concerned whether the Bureau had standing to oppose the trial court's action in allowing the withdrawal of a guilty plea and the entry of a new plea. In Jackson, we said that to allow the Bureau to challenge the criminal court judgment would usurp the district attorney’s power to control criminal prosecutions instituted or pending in the district.