author: JUDE G. GRAVOIS, Judge.

text:
    STATE of Louisiana v. Cedric M. LEWIS.
    No. 11-KA-1000.
    Court of Appeal of Louisiana, Fifth Circuit.
    May 22, 2012.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Gail D. Schlosser, J. Brandon Kinnett, Jerome G. Smith, III, Assistant District Attorneys, Gretna, LA, for Plaintiff/Appellee.
    Bruce G. Whittaker, Attorney at Law, Louisiana Appellate Project, New Orleans, LA, for Defendant/Appellant.
    Panel composed of Judges MARION F. EDWARDS, JUDE G. GRAVOIS, and MARC E. JOHNSON.
   JUDE G. GRAVOIS, Judge.

li>The defendant, Cedric Lewis, has appealed his conviction of second degree murder. For the reasons that follow, we affirm defendant’s conviction and sentence.

FACTS

On the evening of July 3, 2005, Trellas Porter was shot and killed on the inside of his home in Harvey, Jefferson Parish, Louisiana. Defendant and his co-defendant, Renard Scott, were tried together for this murder. This appeal involves only defendant.

At trial, Ms. Alicia Porter, the mother of the victim, testified that on the evening of July 3, 2005, she was in her bedroom watching television when she heard her mother, Ms. Dorothy Eugene, screaming. Ms. Porter came out of her bedroom to see an intruder in her house, whom she described as a black male with shoulder-length dreadlocks, covering his face with a white T-shirt. Ms. Porter explained that she only saw this person for a second, then backed out of the room |sto call the police. While doing so, she heard two gunshots. After she got off the phone with the police, Ms. Porter entered her son’s bedroom to find him lying on the floor with his eyes covered with blood. Although not mentioned in her statement to the police, Ms. Porter testified at trial that she heard her son say the name “Cedric” before he was killed. Ms. Porter’s statement to the police was admitted into evidence.

Ms. Dorothy Eugene, the victim’s grandmother, testified that on the day in question, she was watching television in her den when she heard the front door open followed by hollering. She ran to the living room where she saw two intruders, one with a gun. She could not see the intruders’ faces because they were concealed with some type of cloth; from their hands, however, she could tell that they were black males. The gunman had dreadlocks. The gunman pointed the gun at the victim who was seated on the sofa. Although the intruders and the victim were talking, Ms. Eugene could not understand what they were saying until she heard the victim say, “Cedric, you don’t have to do this.” The victim then stood up from the sofa and proceeded to his bedroom with the gunman and his accomplice. The gunman tripped and fell over a toy box. She grabbed the gunman by the neck, scratched him, and pulled his hair. The gunman then pointed the gun in her face. She called her daughter, Ms. Porter, for help, then ran out of the front door yelling for help. While outside, she heard two gunshots. Ms. Eugene’s statement to the police, as well as her deposition taken for perpetuation purposes, were admitted into evidence.

Christopher Lindsey was questioned by the police in connection with this murder. After Mr. Lindsey asserted his Fifth Amendment right to remain silent at the trial, his statement to the police was introduced into evidence. In his statement, Mr. Lindsey stated that on the night of the murder, he accompanied defendant to |4the victim’s residence to buy marijuana. He stood near the front door, entering no further than the front room. When he heard gunshots, he ran from the house. He heard the victim say something along the lines of “Cedric, don’t do this to me.”

A droplet of blood was discovered on the living room floor of the victim’s home. A swab of this blood was obtained for DNA analysis. Bonnie Dubourg, an expert in forensic DNA analysis, testified that this swab of blood contained DNA consistent with defendant’s DNA. She explained that the DNA profile found in this blood droplet occurs with a frequency of approximately one in greater than a hundred billion persons of Caucasian, African-American, and Hispanic populations.

ASSIGNMENT OF ERROR NUMBER

THREE

The evidence was insufficient to support the verdict of guilty of second degree murder.

In this assignment of error, defendant argues that the inconsistent testimony of eyewitnesses identifying defendant as the gunman rendered the evidence insufficient. In response, the State acknowledges the inconsistent testimony, but argues that the DNA evidence linking defendant to the scene, along with the statement of Christopher Lindsey which placed him at the scene, was sufficient to support the conviction.

In reviewing sufficiency of the evidence, an appellate court must determine that the evidence, whether direct or circumstantial, or a mixture of both, viewed in the light most favorable to the prosecution, was sufficient to convince a rational trier of fact that all of the elements of the crime have been proven beyond a | ¡¡reasonable doubt. State v. Mickel, 09-953, p. 4 (La.App. 5 Cir. 5/11/10), 41 So.3d 532, 534, writ denied, 10-1357 (La.1/7/11), 52 So.3d 885 (citing Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Neal, 00-0674, p. 9 (La.6/29/01), 796 So.2d 649, 657, cert, denied, 535 U.S. 940, 122 S.Ct. 1323, 152 L.Ed.2d 231 (2002)). In addition to proving each statutory element of the crime charged, the State must also prove the identity of the perpetrator. State v. Williams, 08-272, p. 4 (La.App. 5 Cir. 12/16/08), 3 So.3d 526, 529, writ denied, 09-0143 (La.10/16/09), 19 So.3d 470 (citation omitted). When the key issue is identification, the State is required to negate any reasonable probability of misidentification in order to carry its burden of proof. Id. Further, positive identification by only one witness is sufficient to support a conviction. Id.

A review of the record for sufficiency of the evidence does not require the court to ask whether it believes that the evidence at the trial established guilt beyond a reasonable doubt. State v. Jones, 08-20, p. 6 (La.App. 5 Cir. 4/15/08), 985 So.2d 234, 240. Rather, the reviewing court is required to consider the whole record and determine whether any rational trier of fact would have found guilt beyond a reasonable doubt. Id., 08-20 at 7, 985 So.2d at 240.

In his brief to this Court, defendant only contests sufficiency of the evidence on the issue of identity. Accordingly, we will address only that issue.

In State v. Wiley, 10-811, p. 13 (La.App. 5 Cir. 4/26/11), 68 So.3d 583, 591, this Court found the evidence was sufficient to convict the defendant as a principal to second degree murder when the most important piece of evidence was a piece of 1 fichewing gum which contained the defendant’s fingerprints and DNA. The conviction stemmed from a shooting which occurred during a burglary perpetrated by several individuals. Id., 10-811 at 2-3, 68 So.3d at 585-86. This Court found that the State did not prove that the defendant fired the gun that killed the victim, but did find that the State proved beyond a reasonable doubt that the defendant was a principal to second degree murder. Id., 10-811 at 14, 68 So.3d at 591. In reaching this conclusion, this Court relied on the fact that the defendant’s fingerprint and DNA were found at the scene of the crime. Id.

In the instant case, Christopher Lindsey identified defendant as the gunman in his statement and in photographic lineups. Mr. Lindsey stated that he accompanied defendant to the victim’s residence on the night of the murder. The victim’s grandmother, mother, and Mr. Lindsey all stated that they heard the victim say the name “Cedric” before he was killed. Defendant’s DNA matched a droplet of blood that was found at the murder scene. Detective Donald Meunier, the lead investigator on this case, testified that the results of the DNA testing on the droplet of blood confirmed that defendant was at the murder scene. Detective Meunier further testified that he believed that there were three people involved in the murder, two of whom went into the house.

Unlike in Wiley, where this Court found that the State had proven the defendant was a principal to second degree murder based in large part only on DNA evidence, in the instant case, defendant’s conviction was supported not only by DNA evidence, but also by the statement of Mr. Lindsey, who accompanied defendant to the scene, and by the testimony of the victim’s mother and grandmother that they heard the victim call defendant by name before the shooting. 17A positive identification by only one witness is sufficient to support a conviction. Williams, 08-272 at 4, 3 So.3d at 529. In the absence of internal contradiction or irreconcilable conflict with physical evidence, one witness’s testimony, if believed by the trier of fact, is sufficient to support a requisite factual finding. State v. Caffrey, 08-717, p. 5 (La.App. 5 Cir. 5/12/09), 15 So.3d 198, 202, writ denied, 09-1305 (La.2/5/10), 27 So.3d 297 (citation omitted). Further, it is well-settled that the trier of fact can accept or reject, in whole or in part, the testimony of any witness. Caffrey, 08-717 at 5, 15 So.3d at 202 (citation omitted). It is not the appellate court’s function to re-evaluate the credibility of witnesses or to reweigh the evidence. Id., 08-717 at 4, 15 So.3d at 202. Therefore, despite the inconsistent testimony as to whether one or two perpetrators were involved in the murder, the jury heard testimony from all the witnesses, reviewed all the evidence, and concluded that defendant participated in the murder of Trellas Porter.

Viewing the evidence in a light most favorable to the State, the evidence was sufficient to convince a rational trier of fact that defendant was guilty of second degree murder.

This assignment of error is without merit.

ASSIGNMENT OF ERROR NUMBER ONE

It was error to deny the motion to sever the co-defendant for trial.

In this assignment of error, defendant argues that a severance should have been granted because statements made by Karra Crayton, which defendant sought to have admitted, were not admitted due to the objection of his co-defendant, Renard Scott. Conversely, the State contends that defendant waived any motion to sever by proceeding to trial without raising the issue that the trial court had not ruled on the alleged motion to sever. The State also argues that a severance should |snot have been granted because defendant failed to show how he was prejudiced by the exclusion of Ms. Crayton’s statements and the lack of a severance.

It is well established that motions pending at the commencement of trial are waived when the defendant proceeds to trial without raising as an issue, the fact that there was no ruling on the motions. State v. Holmes, 06-2988, p. 80 (La.12/2/08), 5 So.3d 42, 94, cert. denied, - U.S. -, 130 S.Ct. 70, 175 L.Ed.2d 233 (2009) (citations omitted).

Our review of the record indicates that no explicit motion to sever was made in the trial court. On the second day of trial, defendant’s attorney sought to introduce statements of Ms. Crayton due to her unavailability, but co-defendant’s attorney opposed their introduction. Then defendant’s attorney stated: “And the only way I could see to resolve that quandary, is to split the cases and allow us to go to trial first, Mr. Lewis, and have us go to trial first.” The court did not rule on this alleged motion to sever, but did rule that Ms. Crayton’s statements were inadmissible hearsay. In addition to the lack of a ruling on the alleged motion to sever, there was also no objection to the lack of a ruling. Accordingly, pursuant to Holmes, any alleged error related to the alleged motion to sever was waived.

Moreover, we find that defendant is not entitled to relief even if the motion to sever was not waived.

LSA-C.Cr.P. art. 704 provides:
Jointly indicted defendants shall be tried jointly unless:
(1) The state elects to try them separately; or
(2) The court, on motion of the defendant, and after contradictory hearing with the district attorney, is satisfied that justice requires a severance.

Whether justice requires a severance must be determined by the facts of each case. State v. Coe, 09-1012, p. 13 (La.App. 5 Cir. 5/11/10), 40 So.3d 293, 301, writ denied, 10-1245 (La.12/17/10), 51 So.3d 17 (citations omitted). A defendant is not entitled to a severance as a matter of right, but the decision is one resting within the sound discretion of the trial court. Id. A denial of a motion to sever will not be overturned absent a clear abuse of discretion. Id.

A severance is necessary if the defenses of the co-defendants are mutually antagonistic to the extent that one co-defendant attempts to blame the other, causing each defendant to defend against both his co-defendant and the State. Coe, 09-1012 at 13, 40 So.3d at 301. The defendant bears the burden of proof in a motion to sever. Id. The mere unsupported allegation that defenses will be antagonistic is not sufficient to require a severance. Id., 09-1012 at 13, 40 So.3d at 301-02. For defendants to be entitled to separate trials, prejudice must be shown. State v. Jackson, 03-883, p. 16 (La.App. 5 Cir. 4/27/04), 880 So.2d 841, 852, writ denied, 04-1399 (La.11/8/04), 885 So.2d 1118.

At trial in the present case, the only reference to conflicting interests between defendant and his co-defendant was made by defendant’s attorney when he stated that he wanted Ms. Crayton’s statements to come into evidence, while his co-defendant did not. Similar to Jackson, neither defendant blamed the other. The mere allegation of conflicting interests between co-defendants regarding the introduction of a witness’s statements, without the defendants blaming the other, does not constitute mutually antagonistic defenses requiring severance.

Moreover, defendant has not shown how he was prejudiced by the lack of a severance. He contends that he was prejudiced because he was precluded from having Ms. Crayton’s statements introduced into evidence. There were three statements of Ms. Crayton that defendant sought to have introduced and his cojde-fendant10 opposed. In the first statement, Ms. Crayton indicated that she heard the victim repeatedly address the gunman as “Sedric” [sic]. In the second statement, Ms. Crayton identified defendant from a photographic lineup as the gunman. And in the third statement, Ms. Crayton reiterated that defendant was the gunman. Thus, the exclusion of these incriminating statements did not prejudice defendant. To the contrary, the exclusion of these statements seems to have been to defendant’s advantage. Thus, defendant has failed to show how he was prejudiced by the failure to grant his alleged motion for severance based on the exclusion of Ms. Crayton’s statements.

This assignment of error is without merit.

ASSIGNMENT OF ERROR NUMBER TWO

It was error to permit the State to introduce the Tangiólo [sic] gun evidence under the guise of impeachment as the prejudicial effect of the evidence greatly outweighed its minimal-if any-impeaching effort.

In this assignment of error, defendant argues that a Tanfoglio gun box recovered from his residence, which was admitted for impeachment purposes, was admitted erroneously because it was irrelevant. Defendant asserts that the evidence was more prejudicial than probative. In response, the State contends that because this evidence was used for impeachment purposes, it was more probative than prejudicial. In any event, the State claims that even if this evidence was erroneously admitted, the error was harmless since the jury was aware that the murder weapon was not a Tanfoglio gun.

Pursuant to a search warrant obtained for defendant’s residence, a Tanfoglio .45 caliber green gun box was seized. When the State sought to introduce the gun box at trial, the defense objected and the following discussion took place:

J^MR. NOLTING:
Okay, Your Honor, I believe the State is about to introduce what is marked, at this point, State’s exhibit 30, which is a—it’s actually a gun case, a Tanfoglio is the name of it, and it’s for a .45 caliber weapon, a handgun, and I think it has a serial number, and it’s an EA .45 Poly, okay? This gun was taken from the home of Cedric’s mother, who owns the house, okay? Now, Cedric was living there, this is a gun that she purchased from a Hock Shop, and right now I’m trying to get her to make sure to see if we can get the records, because that Hock Shop placed has been closed, she’s trying to — we’re trying to find the guy that had it.
At any rate, the police also recovered the gun itself, when they arrested his brother, I guess in that same area, for some other reason. Okay?
And that gun has been checked out by ballistics, Ms. Walzer checked it out, and it had nothing to do with this case, absolutely nothing.
The mother can come in and testify that that is her weapon, that she had it legally, and that it was nothing— this gun did not in any way touch this case. They’ve already testified that they’ve got the murder weapon, they put it in front of this jury.
That’s not enough, they couldn’t really put it in Cedric’s hands, now they want to imply that, well, he’s around a .45, he said he never had one, and they want to just shove this in here for something that has no materialistic value in this case, as far as who actually had that gun and shot the victim.
What they want to do is put something in that’s highly prejudicial, that has nothing to do with the case, and I think that it should be disallowed.
MR. KINNETT:
I think what he’s trying to say, that that box is—
MR. NOLTING:
It’s irrelevant and immaterial.
MR. KINNETT:
—more prejudicial than probative.
MR. NOLTING:
That’s correct.
MR. KINNETT:
1 ii»The defendant gave a statement to the police that he had never had a gun, never been around a gun, and a gun box is found in his house, his room.
MR. NOLTING:
The gun was not found at his house, it was supposedly found in the possession of his brother.
MR. KINNETT:
The box, I’m not speaking—
MR. NOLTING:
Outside the house—
MR. KINNETT:
So, this indicates that he’s being deceitful with the police officer, in his statement, and that’s the purpose of its introduction.
Mr. Nolting is right, we’ve already indicated that we had the murder weapon, where the murder weapon was found, we went through that extensively, we went through the ballistics at length, and I think the jury will understand that we’re not alleging that the gun that belongs in that box is the murder weapon.
THE COURT:
I understand. I’m going to deny your motion.
MR. NOLTING:
Note my objection.

Relevant evidence is evidence which tends to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. LSA-C.E. art. 401. Although relevant, evidence may nonetheless be excluded if the probative value is substantially outweighed by its prejudicial effect. LSA-C.E. art. 403.

A trial judge, in deciding-the issue of relevancy, must determine whether the evidence bears a rational connection to the facts at issue in the case. State v. Jacobs, 07-887, p. 62 (La.App. 5 Cir. 5/24/11), 67 So.3d 535, 580. Absent a clear 113abuse of discretion, the trial judge’s determinations concerning relevancy and admissibility of evidence should not be overturned. Id., 07-887 at 63, 67 So.3d at 580.

In State v. Manieri, 378 So.2d 931 (La.1979), the defendants were found guilty of murdering an 11-year-old boy by stabbing and strangulation. Three knives were among the items admitted as evidence at trial. Id. at 933. None of the knives had blood stains on them, and a State’s witness testified that none of the knives was the murder weapon. Id. The Supreme Court held that the trial court erred in admitting the knives, but that it was not reversible error, noting that no effort was made during the trial to connect the knives with the crime, thus little possibility existed that the jurors would prejudicially associate the defendants with the knives. Id.

In State v. Burbank, 01-0831, p. 14 (La.App. 4 Cir. 2/27/02), 811 So.2d 1112, 1121, writ granted in part, judgment rev’d in part, 02-1407 (La.4/23/04), 872 So.2d 1049, the Fourth Circuit found that a firearm recovered from the defendant’s home pursuant to a search warrant was relevant evidence, and thus admissible at the defendant’s trial for first degree murder, although the firearm was not the murder weapon. The court reasoned that the weapon was relevant and admissible because it was introduced as part of all the evidence recovered during the execution of the search warrant at the defendant’s residence, the weapon provided evidence that the defendant was familiar with and used guns, and the weapon impeached the testimony of the defendant’s mother that she had never seen defendant with a weapon. Id., 01-0831 at 14-15, 811 So.2d at 1121-22.

The instant case shares similar facts as those in Burbank. Just as in Burbank, the gun box was recovered during the execution of a search warrant at defendant’s residence, it tended to indicate that defendant was familiar with guns, | uand it tended to impeach defendant’s statement that he had never carried or possessed a gun. In his first statement to the police, defendant denied participation in and knowledge of the murder and disclaimed carrying or possessing a gun. Therefore, the gun box was relevant to attack defendant’s credibility.

Further, no effort was made during the trial to connect the Tanfoglio weapon with the murder. In fact, Detective Meunier’s testimony made the jury explicitly aware that the Tanfoglio firearm was not the murder weapon. Thus, there was little possibility that the jury was confused or mislead by the admission of the gun box into evidence.

Having found the gun box relevant and more probative than prejudicial, the trial court did not abuse its discretion in allowing the gun box into evidence.

Further, any error in the admission of evidence is subject to a harmless error analysis. State v. Hotard, 07-498, p. 7 (La.App. 5 Cir. 12/27/07), 975 So.2d 16, 20. The test for determining harmless error is whether the verdict actually rendered in the case was surely unattributable to the error. Id.

In this case, Mr. Lindsey identified defendant as the gunman in his statement to the police and from photographic lineups. Mr. Lindsey stated that he accompanied defendant to the victim’s residence on the night of the murder. The victim’s grandmother, mother, and Mr. Lindsey all stated that they heard the victim say the name “Cedric” before he was killed. Additionally, a droplet of blood containing defendant’s DNA was discovered on the living room floor of the victim’s home. Given this overwhelming evidence, the guilty verdict in this case was surely unattributable to the introduction of the gun box, especially considering that the jury was made aware that the Tanfoglio firearm was not the murder weapon. Thus, even if admission of the gun box was error, it was harmless.

This assignment of error is without merit.

| ^ERRORS patent review

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. Weiland, 556 So.2d 175 (La.App. 5 Cir.1990).

The record reveals that the trial judge did not observe the mandatory 24-hour delay between the denial of defendant’s motion for a new trial and sentencing, as required by LSA-C.Cr.P. art. 873. The trial judge denied defendant’s motion for a new trial on September 16, 2011, and imposed sentence on defendant that same day.

In State v. White, 404 So.2d 1202 (La.1981), the Louisiana Supreme Court stated:

Although LSA-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.

White, 404 So.2d at 1204 (citation omitted).

Citing White, supra, this Court has found that when a defendant does not waive the 24-hour delay afforded by LSA-C.Cr.P. art. 873, and does not challenge the penalty imposed, the error may be harmless. State v. Jones, 07-271, pp. 10-11 (La.App. 5 Cir. 10/30/07), 970 So.2d 1143,1149-50.

Although defendant in this case did not waive the delay for sentencing, he did not object to the sentence in the trial court, nor raise any issue regarding his sentence on appeal. Accordingly, we find that no corrective action is necessary concerning this issue.

| ^CONCLUSION

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

AFFIRMED

      . When the issues on appeal relate to both sufficiency of the evidence and one or more trial errors, the reviewing court should first determine the sufficiency of the evidence. State v. Hearold, 603 So.2d 731, 734 (La.1992). If the appellate court determines that the evidence was insufficient, then the defendant is entitled to an acquittal, and no further inquiry as to trial errors is necessary. Id.

        . On February 13, 2012, defendant filed an "Application to Submit and File Applicant's Opposition and Rebuttal to the State District Attorney’s Response Brief.” This filing was untimely whether it is considered a pro se brief or a reply brief. A pro se briefing notice and a copy of the brief filed on defendant’s behalf was mailed to him on November 28, 2011, thus defendant had 30 days or until December 28, 2011, to file a pro se brief as provided for in Fifth Circuit Court of Appeal Rule 6-1. According to Rule 2-12.7 of the Uniform Rules for the Courts of Appeal, defendant had 10 days after the filing of the State’s brief to file a response. The state's brief was filed on January 19, 2012, thus defendant had until January 29, 2012 to file a reply brief. Moreover, a review of the arguments made by defendant in this document are the same as those raised in his counseled brief, namely that the evidence was not sufficient to prove his identity and that the trial judge should have granted the motion to sever. For the reasons stated herein, we have found these arguments to be without merit.

      . See also, State v. Morgan, 45,110, pp. 1-8 (La.App. 2 Cir. 4/14/10), 34 So.3d 1127, 1130-34, writ denied sub nom., State ex rel. Morgan v. State, 10-1201 (La.5/27/11), 63 So.3d 992, in which the defendant’s three convictions of aggravated rape based solely on DNA evidence were upheld.

      . These statements were proffered by defendant.


source: Caselaw Access Project

author: FREDERICKA HOMBERG WICKER, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Jose Trinidad MALDONADO.
    No. 11-KA-1090.
    Court of Appeal of Louisiana, Fifth Circuit.
    May 22, 2012.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Andrea F. Long,
    Jennifer Rosenbach, Assistant District Attorneys, Gretna, LA, for PlaintifiyAppel-lant.
    Panel composed of Judges CLARENCE E. McMANUS, FREDERICKA HOMBERG WICKER, and ROBERT A. CHAISSON.
   FREDERICKA HOMBERG WICKER, Judge.

|2In this criminal appeal, the State of Louisiana seeks review of defendant’s sentence imposed by the trial court ordering defendant to be placed in the Jefferson Parish Home Incarceration program pursuant to La.C.Cr.P. art. 894.2. Upon review of the record and consideration of the issues before this Court, we find that the recommendation of the Department of Public Safety and Corrections (“Department”) or the district attorney is required in felony cases before a trial court may place a defendant on home incarceration pursuant to La.C.Cr.P. art. 894.2. Because we find the trial judge in this case imposed an illegally lenient sentence, we vacate defendant’s sentence and remand the matter to the trial court for resentenc-ing.

On February 11, 2011, the Jefferson Parish District Attorney filed a bill of information charging defendant, Jose Trinidad Maldonado, with a third offense of operating a motor vehicle while intoxicated in violation of La. R.S. 14:98(A)(D). On August 16, 2011, defendant pled guilty as charged and was on that day sentenced to two years imprisonment at hard labor with the first year to be served ^without benefit of probation, parole, or suspension of sentence. The court instructed that defendant would be allowed to serve the first year of his sentence in the Jefferson Parish Home Incarceration Program. The state objected to the terms of the sentence and made an oral motion for the trial judge to correct the sentence, which was denied. On August 17, 2011, the state filed a written Motion to Correct Illegal Sentence asserting that a trial judge may not place a defendant in home incarceration pursuant to La.C.Cr.P. art. 894.2 in a felony case without the recommendation of the Department or the district attorney. On August 22, 2011, the trial court denied the state’s motion and the state timely appealed.

Defendant pled guilty to driving while intoxicated, third offense, in violation of La. R.S. 14:98(D), which provides in pertinent part:

On a conviction of a third offense, notwithstanding any other provision of law to the contrary and regardless of whether the offense occurred before or after an earlier conviction, the offender shall be imprisoned with or without hard labor for not less than one year nor more than five years and shall be fined two thousand dollars. One year of the sentence of imprisonment shall be imposed without benefit of probation, parole, or suspension of sentence. The court, in its discretion, may suspend all or any part of the remainder of the sentence of imprisonment. If any portion of the sentence is suspended, the offender shall be placed on supervised probation with the Department of Public Safety and Corrections, division of probation and parole, for a period of time equal to the remainder of the sentence of imprisonment, which probation shall commence on the day after the offender’s release from custody.

La. R.S. 14:98(D)(1)(a) (emphasis added).

Accordingly, the clear language of La. R.S. 14:98(D)(1)(a) requires the trial judge to sentence defendant to a minimum of one year without the benefit of probation, parole, or suspension of sentence. Notwithstanding that requirement in |4R.S. 14:98(D)(1)(a), the Louisiana Supreme Court has interpreted La.C.Cr.P. art. 894.2 and found that a trial judge may “sentence a defendant to home incarceration in lieu of imprisonment, even though the statute the defendant was convicted under requires the defendant be sentenced to a term of imprisonment without benefit of probation, parole, or suspension of sentence.” State v. Rome, 96-0991, p. 5 (La.7/1/97), 696 So.2d 976, 979. However, before a trial judge may sentence a defendant to home incarceration in lieu of imprisonment, “the defendant must satisfy all of the criteria established by La.C.Cr.P. art. 894.2.” Id.

In its brief to this Court, the state asserts that a trial judge may not in a felony case place a defendant on home incarceration in lieu of imprisonment without the recommendation of the Department or the district attorney as required under La. C.Cr.P. art. 894.2(A)(2). Further, the state notes that the 2009 amendment to La.C.Cr.P. art. 894.2(A)(2) further supports its position and demonstrates the legislature’s intent to specifically require the recommendation of the Department or district attorney before a defendant in a felony case may be placed on home incarceration under La.C.Cr.P. art. 894.2.

The disputed issue in this case is one of statutory interpretation, which is subject to de novo review. Harrah’s Bossier City Inv. Co., LLC v. Bridges, 2009-1916 (La.5/11/10), 41 So.3d 438, 445, reh’g denied (June 25, 2010); Holly & Smith Architects, Inc. v. St. Helena Congregate Facility, Inc., 2006-0582, p. 9 (La.11/29/06), 943 So.2d 1037, 1045. The starting point in the interpretation of any statute is the language of the statute itself. State v. Johnson, 2003-2993 (La.10/19/04), 884 So.2d 568, 575; Theriot v. Midland Risk Insurance Co., 95-2895 (La.5/20/97), 694 So.2d 184, 186. La.C.Cr.P. art. 894.2(A) provides:

liA- Notwithstanding any other provision of law to the contrary, a defendant may be placed on home incarceration under the following conditions:
(1) The defendant is eligible for probation or was convicted of a misdemeanor or a felony punishable with or without hard labor.
(2) In felony cases, either:
(a) The Department of Public Safety and Corrections, through the division of probation and parole, recommends home incarceration of the defendant and specific conditions of that home incarceration; or
(b) The district attorney recommends home incarceration.
(3)The court determines, after a contradictory hearing, that home incarceration of the defendant is more suitable than imprisonment or supervised probation without home incarceration and would serve the best interests of justice. The court may order home incarceration either in lieu of, or in addition to, a term of imprisonment. When the court sentences a defendant, it may order the defendant to serve any portion of the sentence under home incarceration.

A basic interpretation of subparagraph (A)(2) instructs that there is a requirement in felony cases that either the department or the district attorney make a recommendation of home incarceration before a defendant may be sentenced or placed on home incarceration under La.C.Cr.P. art. 894.2. Prior to its amendment in 2009, La.C.Cr.P. art. 894.2(A)(2) provided that home incarceration was appropriate in felony cases as follows:

In felony cases, the Department of Public Safety and Corrections, through the division of probation and parole, recommends home incarceration of the defendant and specific conditions of that home incarceration, or the district attorney recommends home incarceration, or, after contradictory hearing, the court determines that home incarceration would serve the best interests of justice.

In its brief to this Court, the state argues that the 2009 amendment removing from subparagraph (A)(2) the language “or, after contradictory hearing, the court determines that home incarceration would serve the best interests of justice” demonstrates the legislature’s intent to eliminate the trial judge’s sole discretion to 16place a defendant in a felony case on home incarceration. Further, the state argues that the 2009 amendment to the article demonstrates the legislature’s intent to require in a felony case the recommendation of the Department or the district attorney in addition to the trial judge’s finding that placement on home incarceration would serve the best interest of justice. We agree that the 2009 amendment demonstrates the legislature’s intent to require that a defendant in a felony case shall not be placed on home incarceration pursuant to La.C.Cr.P. art. 894.2 without the recommendation of the Department or the district attorney, as set forth in subparagraph (A)(2), in addition to the trial judge’s finding that home incarceration is more suitable and would serve the best interests of justice, as required under subparagraph (A)(3).

The Louisiana Supreme Court, in interpreting a prior but similar version of La. C.Cr.P. art. 894.2(A), found that all three subparagraphs of the article must be satisfied for a defendant in a felony case to be placed on home incarceration. See State v. Rome, 96-0991, p. 5 (La.7/1/97), 696 So.2d 976, 979. Therefore, we interpret the article to require that each of the three subparagraphs must be satisfied before a defendant may be placed on home incarceration under La.C.Cr.P. art. 894.2. The defendant in this case meets the requirements of paragraph (A)(1) of the statute as he was convicted of a felony punishable with or without labor. According to the trial judge, who did in fact place defendant on home incarceration, the defendant also satisfies the requirements of paragraph (A)(3). |7However, neither the Department nor the district attorney made a recommendation that defendant be placed on home incarceration. Therefore, all requirements set forth in La.C.Cr.P. art. 894.2 were not satisfied in this case and thus the trial court imposed an illegally lenient sentence.

The Louisiana Supreme Court has held that “an illegal sentence results in a situation where ‘no sentence at all has been imposed, and it [the sentence] must be remanded to the district court so that the judge may impose a legal sentence.’ ” State v. Rome, 96-0991 (La.7/1/97), 696 So.2d 976, 981, quoting State v. Johnson, 220 La. 64, 55 So.2d 782, 783 (1951). Considering the foregoing, we vacate the illegal sentence imposed by the trial court which is prohibited by law. This matter is remanded to the trial court for re-sentene-ing in compliance with all of the requirements set forth in La. R.S. 14:98(D).

SENTENCE VACATED; MATTER REMANDED FOR RESENTENCING

      . On April 27, 2011, defendant was arraigned and pled not guilty. On August 16, 2011, defendant withdrew his plea of not guilty and tendered a plea of guilty as charged.

      . At sentencing, the trial court suspended the second year of defendant’s sentence and ordered that defendant would be placed on active probation for that year. The trial court further ordered defendant, for thirty days, to complete community service activities for eight hours per day. Defendant was further ordered to submit to immediate substance abuse evaluation and complete an in-patient substance abuse treatment program for a period of at least four weeks with out-patient treatment thereafter for a period not to exceed twelve months. Defendant was instructed to obtain employment and to complete a court-approved driver improvement program. Defendant was further fined $2,000.00 and was ordered to pay all court costs and fees associated with the Home Incarceration Program and probation. The court also ordered that an interlock device be placed on any vehicle to be driven by defendant during the probationary period and informed defendant that the vehicle he was driving at the time of the instant offense would be seized and sold pursuant to law.

      . The defendant did not file a brief for this Court's consideration.

      . La.C.Cr.P. art. 894.2 was amended by Acts 2009, No. 159, § 1.

      . The version of La.C.Cr.P. art. 894.2 as discussed in State v. Rome, 96-0991 p. 5 (La.7/1/97), 696 So.2d 976, 979, provided:
      A. Notwithstanding any other provision of law to the contrary, a defendant may be sentenced to home incarceration in lieu of imprisonment under the following conditions:
      1) The defendant is eligible for probation or was convicted of a misdemeanor or a felony punishable with or without hard labor.
      (2) In felony cases, the Department of Public Safety and Corrections, through the division of probation and parole, recommends home incarceration of the defendant and specific conditions of that home incarceration.
      (3) The court determines that home incarceration of the defendant is more suitable than imprisonment or supervised probation without home incarceration.


author: ROBERT A. CHAISSON, Judge.

text:
    STATE of Louisiana v. Cevera J. BREAUX, III.
    No. 11-KA-1107.
    Court of Appeal of Louisiana, Fifth Circuit.
    May 22, 2012.
    Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Andrea F. Long, Jennifer Z. Rosenbach, Assistant District Attorneys, Gretna, LA, for Plaintiff/Appellant.
    Kevin M. Steel, Attorney at Law, Gret-na, LA, for Defendant/Appellee.
    Panel composed of Judges CLARENCE E. McMANUS, FREDERICKA HOMBERG WICKER, and ROBERT A. CHAISSON.
   ROBERT A. CHAISSON, Judge.

|2In this appeal, the State seeks review of the trial court’s denial of its motion to correct an illegal sentence. For the reasons that follow, we find that the trial court erred in denying the State’s| motion.

STATEMENT OF THE CASE

On July 29, 2010, the Jefferson Parish District Attorney filed a bill of information charging defendant, Cevera J. Breaux, III, with driving while intoxicated, third offense, in violation of LSA-R.S. 14:98(A), (D). At his arraignment, defendant pled not guilty. On April 27, 2011, defendant attempted to plead guilty; however, during the plea colloquy, the State informed the court that its office would not recommend the home incarceration program and the proceedings were concluded.

On July 8, 2011, defendant filed a motion to recommend home incarceration and a memorandum in support of his motion, requesting that a contradictory hearing be set for the court to determine if home incarceration was more suitable than imprisonment or supervised probation without home incarceration. At the | shearing conducted on July 11, 2011, the trial court determined that home incarceration was appropriate.

Thereafter, on September 12, 2011, defendant withdrew his not guilty plea and pled guilty as charged to driving while intoxicated, third offense. The trial court then sentenced defendant as follows:

Your custody is remanded to the Jefferson Parish correctional facility and therein you will spend 18 months. The first 45 days of that sentence will be served without the benefit of probation, parole or suspension of sentence.
The Court will allow you to serve those 45 days in the Jefferson Parish Home Incarceration Program, herein after known as JP-HIP. The remaining 16 and a half months of the 187 month sentence are suspended and shall be spent on active probation and in the custody of the JP-HIP for a period of 16 and a half months.
You shall complete 38 hours of court approved community service. You will submit to an immediate substance abuse evaluation and in-patient substance abuse treatment for at least four weeks, followed by out-patient treatment for a period not to exceed 12 months. Upon completion of the in-patient treatment the defendant, you, sir, will be returned to the custody of the JP-HIP for the remainder of probation. You’re fined $2,000.00 and all costs as is indicated on your schedule of fines, fees and costs attached hereto. You shall obtain employment, you’ll successfully complete driver improvement program. An interlock device is ordered for the period of probation on any vehicle you may operate and that the vehicle in this matter shall be seized and sold if applicable under the law. [footnote added]

Immediately thereafter, the State objected to the sentence and filed a motion to correct illegal sentence. In its motion, the State argued that the trial court was without authority to impose home incarceration on defendant for the initial forty-five days of his sentence because neither the Department of Public Safety and Corrections nor the District Attorney had recommended home incarceration as required by LSA-C.Cr.P. art. 894.2. The trial court denied the State’s motion. It is from this denial that the State now appeals.

\4law and analysis

On appeal, the State contends that the trial court erred in placing defendant on home incarceration without the recommendation of either the Department of Public Safety and Corrections or the District Attorney as required by LSA-C.Cr.P. art. 894.2. The State argues that the text of Article 894.2 and the legislative amendments to the provision demonstrate that the recommendation of either the Department of Public Safety and Corrections or the District Attorney is a mandatory requirement of the article. The State submits that the portion of the sentence which placed defendant on home incarceration for the initial forty-five days of his sentence is illegal and must be set aside. We agree with the State’s argument.

In the present ease, defendant pled guilty to DWI, third offense, and was sentenced pursuant to LSA-R.S. 14:98(D). At the time of the instant offense, that provision provided, in pertinent part, as follows:

D. (l)(a) On a conviction of a third offense, notwithstanding any other provision of law to the contrary and regardless of whether the offense occurred before or after an earlier conviction, the offender shall be imprisoned with or without hard labor for not less than one year nor more than five years and shall be fined two thousand dollars. Forty-five days of the sentence of imprisonment shall be imposed without benefit of probation, parole, or suspension of sentence. The court, in its discretion, may suspend all or any part of the remainder of the sentence of imprisonment. If any portion of the sentence is suspended, the offender shall be placed on supervised probation with the Department of Public Safety and Corrections, division of probation and parole, for a period of time equal to the remainder of the sentence of imprisonment, which probation shall commence on the day after the offender’s release from custody.

LSA-R.S. 14:98(D)(l)(c) further provides that “any offender placed on probation pursuant to the provisions of Subsection D of this Section shall be placed in a home incarceration program approved by the division of probation and parole 15for a period of time not less than six months and not more than the remainder of the sentence of imprisonment.”

In the instant case, the trial court sentenced defendant to the Jefferson Parish Correctional Facility for eighteen months. The court noted that the first forty-five days of the sentence was to be served without benefit of parole, probation, or suspension of sentence and that defendant would be allowed to serve those forty-five days in the Jefferson Parish Home Incarceration Program. The court suspended the remaining sixteen and one-half months of the sentence, placed defendant on active probation, and imposed home incarceration for the probationary period.

Under the provisions of LSA-R.S. 14:98(D)(1), the trial court has the authority to suspend a portion of defendant’s sentence, to place him on active probation, and to order home incarceration during the probationary period; however, the trial court is without authority to do so for the first forty-five days. Under the clear language of LSA-R.S. 14:98(D)(l)(a), the trial court was required to sentence defendant to forty-five days in prison and did not have the option of suspending defendant’s sentence or placing defendant on probation for the first forty-five days. Therefore, the trial court was also not authorized to place defendant on home incarceration for the first forty-five days.

Our next inquiry is whether the trial court was authorized to place defendant on home incarceration for the first forty-five days of his sentence pursuant to LSA-C.Cr.P. art. 894.2. At the time of the present offense, LSA-C.Cr.P. art. 894.2(A) provided the following:

|fA- Notwithstanding any other provision of law to the contrary, a defendant may be sentenced to home incarceration under the following conditions:
(1) The defendant is eligible for probation or was convicted of a misdemeanor or a felony punishable with or without hard labor.
(2) In felony cases, either:
(a) The Department of Public Safety and Corrections, through the division of probation and parole, recommends home incarceration of the defendant and specific conditions of that home incarceration; or
(b) The district attorney recommends home incarceration.
(3) The court determines, after a contradictory hearing, that home incarceration of the defendant is more suitable than imprisonment or supervised probation without home incarceration and would serve the best interests of justice. The court may sentence a defendant to home incarceration either in lieu of, or in addition to, a term of imprisonment. When the court sentences a defendant, it may order the defendant to serve any portion of the sentence under home incarceration.

The State would have us construe the statutory language at issue as prohibiting the trial court from imposing home incarceration without the recommendation of the District Attorney or the Department of Public Safety and Corrections. The State argues that in felony cases, LSA-C.Cr.P. art. 894.2(A) requires the presence of all three subsections. In contrast, defendant would have this Court interpret the article as requiring either subsection (2) or (3) occur for placement in home incarceration.

The function of statutory interpretation and the construction to be given to legislative acts rests with the judicial branch of the government. State v. Dick, 06-2223 (La.1/26/07), 951 So.2d 124, 130. The Louisiana Supreme Court has often noted that the paramount consideration in statutory interpretation is the ascertainment of legislative intent and the reason or reasons that prompted the legislature to enact the law. Legislative intent is the fundamental question in all cases of statutory interpretation, and rules of statutory construction are designed to l7ascertain and enforce the intent of the Legislature. State v. Johnson, 03-2993 (La.10/19/04), 884 So.2d 568, 575.

The starting point in the interpretation of any statute is the language of the statute itself. State v. Dick, 951 So.2d at 130. Consequently, when a law 'is clear and unambiguous and its application does not lead to absurd consequences, the law shall be applied as written and no further interpretation may be made in search of the intent of the Legislature. However, when the language of the law is susceptible of different meanings, it must be interpreted as having the meaning that best conforms to the purpose of the law. State v. Gutweiler, 06-2596 (La.4/8/08), 979 So.2d 469, 476. Moreover, when the words of a law are ambiguous, their meaning must be sought by examining the context in which they occur and the text of the law as a whole. State v. Dick, 951 So.2d at 131.

LSA-C.Cr.P. art. 894.2 was amended by Acts 2009, No. 159, § 1. Prior to the amendment in 2009, Article 894.2 provided, in pertinent part, the following:

A. Notwithstanding any other provision of law to the contrary, a defendant may be sentenced to home incarceration in lieu of imprisonment under the following conditions:
(1) The defendant is eligible for probation or was convicted of a misdemeanor or a felony punishable with or without hard labor.
(2) In felony cases, the Department of Public Safety and Corrections, through the division of probation and parole, recommends home incarceration of the defendant and specific conditions of that home incarceration, or the district attorney recommends home incarceration, or, after contradictory hearing, the court determines that home incarceration would serve the best interests of justice. (emphasis added)
(3) The court determines that home incarceration of the defendant is more suitable than imprisonment or supervised probation without home incarceration.

Prior to the 2009 amendment, the article clearly allowed the trial court to place a defendant on home incarceration in a felony case after a contradictory | ^hearing. This version of the article, which was not in effect at the time of the instant offense, did not require a recommendation from the Department of Public Safety and Corrections or from the District Attorney, as evidenced by the term “or” in subsection (2) of the article. However, the 2009 amendment specifically removed the language in subsection (2) regarding the trial court and incorporated the language into subsection (3). Subsection (2) was left with the requirement of a recommendation by either the Department of Public Safety and Corrections or the District Attorney only. We find that the legislative amendment, and in particular, the removal of the trial court’s authority in subsection (2), shows the legislative intent to require a recommendation by the Department of Public Safety and Corrections or the District Attorney for placement in home incarceration.

Further, in State v. Rome, 96-0991 (La.7/1/97), 696 So.2d 976, 979, the Louisiana Supreme Court, in discussing LSA-C.Cr.P. art. 894.2, explained the following:

The legislature, pursuant to its power to determine the appropriate punishment for crimes classified as felonies, enacted this special provision which allows the trial judge to sentence a defendant to home incarceration in lieu of imprisonment, even though the statute the defendant was convicted under requires the defendant be sentenced to a term of imprisonment without benefit of probation, parole, or suspension of sentence. However, before the trial judge may sentence a defendant to home incarceration in lieu of a traditional corrections facility, the defendant must satisfy all of the criteria established by La.C.Cr.P. art. 894.2.

At the time of the Rome decision, Article 894.2(A) provided the following:

A. Notwithstanding any other provision of law to the contrary, a defendant may be sentenced to home incarceration in lieu of imprisonment under the following conditions:
(1) The defendant is eligible for probation or was convicted of a misdemeanor or a felony punishable with or without hard labor.
|a(2) In felony cases, the Department of Public Safety and Corrections, through the division of probation and parole, recommends home incarceration of the defendant and specific conditions of that home incarceration.
(3) The court determines that home incarceration of the defendant is more suitable than imprisonment or supervised probation without home incarceration.

In Rome, the Louisiana Supreme Court concluded that defendant had met the requirements of subsections (A)(1) and (A)(3), but that the “the trial judge’s failure to obtain the Department’s prior recommendation before sentencing defendant to home incarceration in lieu of imprisonment resulted in the imposition of an illegal sentence as it was not authorized by law.” State v. Rome, 696 So.2d at 981.

Based on the foregoing discussion, we find that, in felony cases, LSA-C.Cr.P. art. 894.2(A) requires that all three conditions be met in order to place defendant in a home incarceration program. In the present case, there was no recommendation for home incarceration from either the Department of Public Safety and Corrections or the District Attorney. Therefore, the condition listed in subsection 2 of Article 894.2(A) was not met. Without this recommendation, the trial court was without authority to place defendant in a home incarceration program for the first forty-five days of his sentence, resulting in an illegal sentence.

Accordingly, for the reasons set forth herein, we vacate the portion of the sentence which placed defendant in a home incarceration program for the initial forty-five days of his sentence and remand the matter for resentencing in compliance with the directives of LSA-R.S. 14:98(D) and LSA-C.Cr.P. art. 894.2.

VACATED AND REMANDED

      . The transcript reflects that the trial court sentenced defendant to eighteen months. This reference in the transcript to a "187 month sentence” is clearly a typographical error.

      . LSA-R.S. 14:98(D)(3)(c) states: "Offenders sentenced to home incarceration required under the provisions of this Section shall be subject to all other applicable provisions of Code of Criminal Procedure Article 894.2."

      . The version of LSA-C.Cr.P. art. 894.2(A) after the 2009 legislative amendment is analogous to the earlier version of Article 894.2(A) which was discussed in State v. Rome, supra.

      . In the instant case, the validity of the guilty plea was not contingent upon defendant being placed on home incarceration. At the time of the guilty plea, the judge warned defendant that his punishment could be declared illegal, which would mean his sentence could be vacated and he would have to be re-sentenced to "straight time” instead of placement in the home incarceration program. Defendant agreed to go forward with the guilty plea knowing this.


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

text:
    SUCCESSION OF Michael A. RUSSO.
    No. 12-CA-32.
    Court of Appeal of Louisiana, Fifth Circuit.
    May 22, 2012.

      Richard R. Schulze, Attorney at Law, Metairie, LA, for Appellant, Samantha Ronquille-Green.
    Harold E. Molaison, Attorney at Law, Metairie, LA, for Appellee, Tammy Gor-man on behalf of Michael Kaegen Faulk.
    Panel composed of Judges SUSAN M. CHEHARDY, WALTER J. ROTHSCHILD, and JUDE G. GRAVOIS.
   SUSAN M. CHEHARDY, Judge.

|2On appeal, Samantha Ronquille-Green challenges the trial judge’s grant of Tammy Faulk Gorman’s exception of no cause of action. For the following reasons, we affirm.

Facts and Procedural History

On November 24, 2009, Michael A. Russo signed his last will and testament bequeathing “all of my interest in my home” and “all of the proceeds from the sale of my ... home ..., the remaining balances in any and all ... bank accounts, and all proceeds from the sale of my vehicles” to his “belovéd step grandson,” Kaegen Michael Faulk. In his will, Russo also stated that the aforementioned proceeds and “any other movables which I have not specifically bequeathed to any other legatees” were to be held in a trust from Kaegen Michael Faulk to be established at the time of Russo’s death. In his will, Russo appointed his niece, Samantha Ronquille-Green [hereinafter “Green”], as executrix of his succession.

Also, on November 24, 2009, Michael Russo executed a trust instrument creating the “Michael A. Russo Trust I.” Russo, as settlor, conveyed to the trustees, Green and her sister, Danielle Ronquille-Lipski, all interest in the property to be administered in accordance with the trust instrument for the principal and |,.¡primary income beneficiary, Kaegen Michael Faulk, to pay for all of the costs of his education until he successfully obtains a Bachelor’s degree at an accredited college. Once Kaegen Michael Faulk succeeds in obtaining his degree, the trust is terminated and he receives all property and/or proceeds remaining in the trust.

Michael Russo died on February 5, 2010.

On March 18, 2011, Samantha Ronq-uille-Green petitioned for appointment as administratrix of Russo’s succession alleging that Russo died intestate because the November 24, 2009 will executed by Russo is invalid. In an affidavit attached to her petition, Green attests that her uncle’s will is invalid because she has personal knowledge that “neither the notary public nor the two witnesses who signed the testament were present when the testator executed the will, but were outside of the room at the time of the execution by the testator.”

On May 3, 2011, Green, as administrator of Russo’s succession, filed a petition for declaratory judgment seeking to have Michael Russo’s November 24, 2009 testament declared invalid because “neither the notary public nor the two witnesses who signed the testament were present when the testator executed the will, but were outside of the room at the time of the execution by the testator.” Green attached a copy of the Trust instrument, which she signed as Trustee, to her petition.

On August 6, 2011, Tammy Faulk Gor-man [hereinafter “Gorman”], as “provisional custodian by mandate” of Kaegen Michael Faulk, filed an exception of no cause of action on the basis that Green has not alleged sufficient facts to state a claim meriting a legal remedy. After a hearing, the trial judge granted Gorman’s Rexception on September 19, 2011, issued written reasons for judgment as requested on October 4, 2011, and granted Green’s appeal on October 11, 2011.

Law and Argument

On appeal, Green raises three assignments of error: first, the trial court erred in holding that the petition for declaratory judgment filed by the administratrix of the Succession of Michael A. Russo failed to state a cause of action; second, the trial court erred in holding that since the petition for declaratory judgment does not allege a vice of consent, simulation, or modification by a subsequent and valid oral agreement to an alleged authentic act, the petitioner could not introduce parol evidence; and third, the trial court erred in its judgment in failing to grant the petitioner the right to amend the petition for declaratory judgment.

A cause of action, when used in the context of the peremptory exception, is defined as the operative facts that give rise to the plaintiffs right to judicially assert the action against the defendant. Everything on Wheels Subaru, Inc. v. Subaru South, Inc., 616 So.2d 1234,1288 (La.1993). The function of the peremptory exception of no cause of action is to test the legal sufficiency of the petition, which is done by determining whether the law affords a remedy on the facts alleged in the pleading. Id. at 1235.

No evidence may be introduced to support or controvert an exception of no cause of action. La. C.C.P. art. 931. Consequently, the court reviews the petition and accepts well-pleaded allegations of fact as true. Jackson v. State ex rel. Dept. of Corrections, 00-2882, p. 3 (La.5/15/01), 785 So.2d 803, 806; Everything on Wheels Subaru, 616 So.2d at 1235.

lsThe issue at the trial of the exception is whether, on the face of the petition, the plaintiff is legally entitled to the relief sought. Montalvo v. Sondes, 93-2813, p. 6 (La.5/23/94), 637 So.2d 127, 131. The burden of demonstrating that the petition states no cause of action is upon the mover. City of New Orleans v. Board of Com’rs of Orleans Levee Dist., 93-0690, p. 28 (La.7/5/94), 640 So.2d 237, 253.

In reviewing the judgment of the district court relating to an exception of no cause of action, appellate courts should conduct a de novo review because the exception raises a question of law and the lower court’s decision is based solely on the sufficiency of the petition. Fink v. Bryant, 01-0987, p. 4 (La.11/28/01), 801 So.2d 346, 349; City of New Orleans at p. 28, 640 So.2d at 253

There is a presumption in favor of the validity of testaments in general which can be rebutted with exceptionally compelling proof of the nonobservance of formalities. Succession of Daigle, 601 So.2d 10, 12-13 (La.App. 3 Cir.1992). La. C.C. art. 1577 authorizes a notarial will to afford a “simplified means of making a testament whereby the authenticity of the act can be readily ascertained and fraudulent alteration of it will be most difficult.” Succession of Richardson, 05-0552 (La.App. 1 Cir. 3/24/06), 934 So.2d 749, 751, writ denied, 06-0896 (La.6/2/06), 929 So.2d 1265.

La. C.C. art. 1577 reads:

The notarial testament shall be prepared in writing and dated and shall be executed in the following manner. If the testator knows how to sign his name and to read and is physically able to do both, then:
(1) In the presence of a notary and two competent witnesses, the testator shall declare or signify to them that the instrument is his testament and shall sign his name at the end of the testament and on each other separate page.
(2) In the presence of the testator and each other, the notary and the witnesses shall sign the following declaration, or one substantially similar: “In our presence the testator has declared or signified that this instrument is his testament and has signed it at the end and on each | pother separate page, and in the presence of the testator and each other we have hereunto subscribed our names this_day of_,_”

Thus, in order to be valid as to form, (1) the testator must declare or signify in the presence of a notary and two witnesses that the instrument is his last will and testament; (2) the testator must sign his name at the end of the testament and on each separate page; and (3) the notary and two witnesses must sign a declaration in the presence of each other and the testator attesting that the formalities of La. C.C. art. 1577(1) have been followed. Succession of Siverd, 08-2383, 08-2384 (La.App. 1 Cir. 9/11/09), 24 So.3d 228, 230.

To support her Petition for Declaratory Judgment seeking to have the will declared a nullity, Ms. Green attached an affidavit from her sister and herself stating that the witnesses were not in the room when Mr. Russo signed his will. However, Ms. Green failed to attach a copy of the will to her petition. Further, she failed to allege in her petition or provide support for her claim that either of the witnesses or the notary public would attest that they failed to observe the requisite formalities under La. C.C. art. 1577. Thus, accepting all of the allegations in Green’s petition as true and applying the legal principles set forth above, we find no error in the trial court’s ruling that her petition fails to allege facts sufficient to state a cause of action for invalidating Michael Russo’s will.

Next, Ms. Green argues that the trial court erred in holding that since the petition for declaratory judgment does not allege a vice of consent, simulation, or modification by a subsequent and valid oral agreement to an alleged authentic act, the petitioner could not introduce parol evidence. The judgment before this Court does not contain that language so that finding is not before this Court.

Finally, although it is unclear whether Ms. Green sought leave to amend her petition to state a cause of action, the trial court apparently concluded that the 17grounds raised in the exception could not be removed by amendment. The right to amend a petition is qualified by the restriction that the objection be curable. Nelson v. Williams, 97-276 (La.App. 5 Cir. 9/30/97), 707 So.2d 436, 440 n. 3. Where the amendment would be a vain and useless act, such an amendment is not required by La. C.C.P. art. 934. Drennan v. Killian, 97-1120 (La.App. 5 Cir. 4/28/98), 712 So.2d 978, 981. Based on the foregoing, the trial court’s ruling is affirmed. Costs are taxed entirely to appellant, Samantha Ronquille-Green.

AFFIRMED

GRAVOIS, J., dissents with reasons.

GRAVOIS, J.,

dissents with reasons.

|]I respectfully dissent from the majority holding herein. In my view, the trial court erred in granting appellee’s exception of no cause of action.

The Exception of No Cause of Action is designed to test the legal sufficiency of the petition by determining whether the plaintiff is afforded a remedy in law based on the facts alleged in the petition. Lybrand v. Newman, Drolla, Mathis, Brady & Wakefield, 95-9 (La.App. 5 Cir. 10/31/95), 663 So.2d 850. For the purpose of determining the issues raised by the exception, the well-pleaded facts in the petition and any annexed documents must be accepted as true. City of New Orleans v. Board of Commissioners, 93-0690 (La.7/5/94), 640 So.2d 237. No evidence may be introduced at any time to support or controvert the exception. Angelica v. Angelica, 608 So.2d 256 (La.App. 5 Cir.1992).

The Petition for Declaratory Judgment filed in this case alleges that the decedent’s will, the original of which was filed into the trial court record of this proceeding, is not valid because “neither the notary public nor the two witnesses who signed the testament were present when the testator executed the will, but were outside of the room at the time of the execution by the testator.” The petition further alleges that neither of the witnesses nor the notary public was present when the trust document was executed.

|2After the hearing on appellee’s exception of no cause of action, the trial judge took the matter under advisement. He then rendered judgment granting the exception after which appellant requested written reasons for judgment. In his written reasons for judgment, the trial judge cited La. C.C. art. 1848, which states that testimonial or other evidence may not be admitted to negate or vary the contents of an authentic act, but such evidence may be admitted to prove vice of consent, simulation, or modification. The trial judge then went on to state that there were no allegations of vice of consent, simulation or modification. Thus, in essence, the trial judge held that because parol evidence could only be used to attack an authentic act when there are allegations of vice of consent, simulation or modification, appellant had failed to state a cause of action in the Petition for Declaratory Judgment.

The general rule is that parol evidence is not admissible to contradict or destroy an authentic act. Succession of Robinson, 94-2229 (La.5/22/95), 654 So.2d 682, 685. However, where it has been alleged that the act is made in contravention of the law, evidence relevant to this fact is admissible to prove what legal effect, if any, the act will be given. Id. Parol evidence is admissible to establish that an instrument purporting to be an authentic act is not in fact authentic because it was not executed in compliance with codal requirements. American Bank & Trust Co. v. Carson Homes, Inc., 316 So.2d 732 (La.1975).

In view of the jurisprudential rule allowing parol evidence to be offered to prove that an instrument purporting to be an authentic act was not executed in compliance with the codal requirements, and accepting the allegations in the Petition for Declaratory Judgment that the will and trust instruments in this case were not executed in front of a notary and two Jjwitnesses as true, I find that the trial judge erred in granting appellee’s exception of no cause of action. Accordingly, I would reverse the judgment of the trial court and remand the matter for further proceedings.

      . If the primary income beneficiary dies intestate, the surviving Trustees shall become equal income beneficiaries.

      . If the beneficiary does not attend and/or complete college, the trust pays him $1,000.00 per month until the proceeds of the trust are depleted.

      . Green also moved that the trial judge designate the grant of Gorman’s exception of no cause of action as a final judgment, which the trial judge did. See, La. C.C.P. art. 1915(B)(1). We note that, under La. C.C.P. art. 934, when the grounds of the objection raised through the exception cannot be so removed, the demand shall be dismissed, which would make the judgment final even without designation as such.


text:
    Zenobia DOUCETTE v. LOUISIANA CITIZENS COASTAL PLAN, Louisiana Citizens Fair Plan, Louisiana Citizens Property Insurance Corporation and Bankers Insurance Group.
    No. 12-CA-52.
    Court of Appeal of Louisiana, Fifth Circuit.
    May 22, 2012.

      Phillip T. Hager, Attorney at Law, Me-tairie, LA, for Plaintiff/Appellant.
    Charles M. Hughes, Jr., Rachael P. Ca-talanotto, Attorneys at Law, Mandeville, LA, for Defendant/Appellee.
    Panel composed of Judges CLARENCE E. McMANUS, WALTER J. ROTHSCHILD, and ROBERT A. CHAISSON.
   ROBERT A. CHAISSON, Judge.

I ¡¡This is an appeal by Zenobia Doucette, plaintiff-appellant, from a summary judgment dismissing with prejudice her claims against Louisiana Citizens Property Insurance Corporation (Citizens), defendant-ap-pellee, in this home insurance action. For the following reasons, we affirm that judgment.

FACTS AND PROCEDURAL HISTORY

The facts are that Citizens had in effect a homeowner’s insurance policy for a house which Ms. Doucette owned. Ms. Doucette’s aunt had lived in the house for a number of years, but sometime around November, 2008, she moved out so that major repairs could be made. The house remained fully furnished while the repairs were being done. Ms. Doucette testified in deposition and by affidavit that although no one was actually living in the house, she and other family members regularly went there to perform maintenance on the house and grounds. She stated Rthat her mother lived across the street from the property and checked on it daily. She further testified that she told her insurance agent about the situation at the house.

On April 1, 2010, a burglary took place at the house. It appears that the burglars entered the garage, broke into the attic space, and then dropped down into the house through a ceiling. Electrical wiring was apparently damaged in the break-in, and although the meter was still installed, Ms. Doucette said that no electricity was coming into the house.

On May 28, 2010, Ms. Doucette was at the house cleaning and doing some touch-up painting. Because there were no functioning lights, she set a Tiki lamp on a table to provide light. When she went into another room to get supplies she was startled by a large rat. She fled the room and apparently knocked over a ladder, which in turn knocked the Tiki lamp to the floor where it ignited an open container of paint thinner. The house was severely damaged in the ensuing fire.

Ms. Doucette made a claim for the damage with Citizens. Citizens noted that the policy at issue excluded damages to the property if it had been vacant or unoccupied for more than 60 days. Because Citizens concluded that no one had lived in the house since Ms. Doucette’s aunt had moved out in November of 2008, it denied coverage. Ms. Doucette sued Citizens on the policy, and Citizens urged a motion for summary judgment. That motion was granted, and this appeal followed.

LAW AND ANALYSIS

The law as to summary judgments involving insurance coverage was well summarized in Smith v. Reliance Ins. Co. of Illinois, 01-888 (La.App. 5 Cir. 1/15/02), 807 So.2d 1010, as follows:

|4Summary judgment shall be rendered if there is no genuine issue as to material fact and the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(B). The burden of proof on a motion for summary judgment is on the movant to establish that no material factual issues exist. La. C.C.P. art. 966(C)(2); Schroeder v. Board of Supervisors of La. State Univ., 591 So.2d 342, 345 (La.1991). Only when reasonable minds must inevitably conclude that the mover is entitled to judgment as a matter of law on the facts before the court is a summary judgment warranted. Chaisson v. Domingue, 372 So.2d 1225, 1227 (La.1979). Summary judgment declaring a lack of coverage under an insurance policy may not be rendered unless there is no reasonable interpretation of the policy, when applied to the undisputed material facts shown by the evidence supporting the motion, under which coverage could be afforded. Westerfield v. LaFleur, 493 So.2d 600, 605 (La.1986). An insurer seeking to avoid coverage through summary judgment must prove that some exclusion applies to preclude coverage. Jackson v. Frisard, 96-0547 (La.App. 1st Cir.12/20/96), 685 So.2d 622, 629, writs denied, 97-0193 and 97-0201 (La.3/14/97), 689 So.2d 1386 and 1387. Appellate review of summary judgment is de novo, utilizing the same criteria that guide the trial court’s grant of the judgment. Guillory v. Interstate Gas Station, 94-1767 (La.3/30/95), 653 So.2d 1152.

The pertinent portion of the insurance policy at issue here is taken directly from the “form of the standard fire insurance policy of the state of Louisiana” which appears at La. R.S. 22:1311(F). That form states in part:

Conditions suspending or restricting insurance — Unless otherwise provided in writing added hereto, this company shall not be liable for loss occurring:
(b) While a described building, whether intended for occupancy by owner or tenant, is vacant, or unoccupied beyond a period of sixty consecutive days.

It is this clause upon which Citizens based its decision to deny coverage for the fire, and upon which the trial judge evidently relied in granting summary judgment in the insurer’s favor.

Ms. Doucette urges that there are disputes as to material facts in three areas of inquiry essential to resolution of the suit, and that granting the motion for summary judgment was thus improper. First, she argues that there are factual | squestions as to whether the house was vacant or unoccupied for sixty days; second, she claims that there are questions about whether any actions taken by her actually increased the moral or physical hazards which the policy insured against; and third, she asserts that Citizens, through its agents, knew that her aunt was not living in the house, and it therefore acquiesced in this situation.

Ms. Doucette contends that the fact that her aunt’s furniture was left on the premises, and her family’s frequent visits to the house to perform maintenance, were sufficient to establish that the house was not vacant or unoccupied for a period of sixty consecutive days. Citizens does not assert that the house was “vacant,” and admits that that term denotes a house which is empty of the goods and property of the insured. It does assert, however, that the house was “unoccupied” because no one was regularly inhabiting the premises.

In Terwilliger v. Union Fire, Accident, and General Insurance Company, 185 So. 43 (La.App.Orl.1938), the owner of a house had not lived in it for over three months. He testified that he would return to the house once or twice a week, that he occasionally spent the night there, and that he had his neighbor keep an eye on the place. The court found that these intermittent visits did not constitute ‘occupancy,’ and that there was no longer coverage under the policy. It also quoted what it considered the leading case on the subject, Herrman v. Adriatic Fire Ins. Co., 85 N.Y. 162, 39 Am.Rep. 644 (1881), as follows: “for a dwelling-house to be in a state of occupation, there must be in it the presence of human beings at their customary place of abode, not absolutely and uninterruptedly continuous, but that must be the place of usual return and habitual stoppage.” Ter-williger, supra., at 44.

Boyette v. Underwriters at Lloyd’s London, 372 So.2d 592 (La.App. 3rd Cir.1979), is another case similar to the present matter. There, the insured house had | nbeen vacant for several months, but a few days before a fire the owner’s son cut the grass and moved some furniture and clothes into the building preparatory to moving in with his wife and children. He then went to work offshore and his wife and children continued to live with her parents. No utilities were turned on. The court ruled that under these facts, the house was ‘unoccupied’ for more than sixty days, and summary judgment under the policy was appropriate. In its reasoning, the court quoted with approval the district court judge’s observation that “[i]n the policy in question, ‘vacancy’ means empty, that is empty of goods and property of the insured while ‘unoccupied’ means the absence of or lack of regular habitation by humans.” (at 594).

In the present case, it is undisputed that the house was unoccupied. Although the owner did regular maintenance and had her mother visit the property, no one was living there on any regular basis. We therefore find that the clause in the policy excluding coverage for a building unoccupied for more than sixty days was properly invoked by the insurer to deny coverage. We are aware of Burrell v. Seguros America Banamex, S.A., 316 So.2d 177 (La.App. 4th Cir.1975), but to the extent that that case would suggest a different result here, we decline to follow it.

Appellant’s second and third arguments involve application of La. R.S. 22:1314(A & B). Section A provides that no breach of an insurance contract shall allow an insurer to avoid liability unless the breach increases the ‘physical hazard’ under the policy. Here, it is undisputed that the house was burglarized two months before the fire, and that during that burglary the electrical system was damaged in a way that prevented power from coming into the building from the meter. Had the house been occupied, this condition would no doubt have been remedied immediately. Instead, the owner resorted to lighting an open flamed Tiki lamp to |7provide light to the interior of the house. This is precisely the kind of hazard that would not have developed had the house been occupied and the power restored. This breach of the occupancy clause clearly increased the hazard of fire, and the insurer was thus absolved of liability.

Section B of the above statute provides that where the insurer or its agents are aware of the breach prior to the time of the loss, it may not avoid liability because of the breach. Ms. Doucette stated in her affidavit that she had mentioned to her insurance agent that her aunt was not living in the house prior to the fire. Sharon Green, her agent, filed an affidavit denying that she or any of her employees had ever been told of this situation. Although there is a dispute on this point, that dispute is irrelevant. There is no assertion or evidence to establish that Ms. Green is an agent for Citizens. In the summary judgment context, the party not bearing the burden of proof need only point out to the court that there is a lack of evidence to support an essential element of the other party’s claim; at that point, the non-moving party must come forward with evidence to show that she will be able to meet that burden. La. C.C.P. art. 966(C)(2). No such evidence was produced by Ms. Doucette, and summary judgment was properly entered.

For the foregoing reasons, the summary judgment in favor of Louisiana Citizens Property Insurance Corporation dismissing with prejudice the claims of Zenobia Doucette against it is hereby affirmed.

AFFIRMED

      . Although there are no written reasons for judgment, the trial judge indicated at the hearing on the motion for summary judgment that he agreed with the position advanced by counsel for Citizens.


author: MARION F. EDWARDS, Chief Judge.

text:
    STATE of Louisiana v. Nathan PETTUS.
    No. 11-KA-862.
    Court of Appeal of Louisiana, Fifth Circuit.
    May 22, 2012.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Juliet Clark, Assistant District Attorneys, Gretna, LA, for Plaintiff/Appellee.
    Holli A. Herrle-Castillo, Attorney at Law, Louisiana Appellate Project, Marre-ro, LA, for Defendant/Appellant.
    Panel composed of Judges MARION F. EDWARDS, CLARENCE E. McMANUS, and MARC E. JOHNSON.
   MARION F. EDWARDS, Chief Judge.

| jjDefendant/appellant, Nathan Pettus (“Pettus”), appeals his sentence of life imprisonment at hard labor after an adjudication of being a fourth felony offender. This is Pettus’ third appeal in this matter. He was originally charged with theft of goods valued at over $300 in violation of La. R.S. 14:67.10. After a jury convicted Pettus of the charge, the trial court sentenced him to two years at hard labor with credit for time served. Pettus appealed the matter to this Court. We affirmed that conviction.

The State filed a bill of information alleging that Pettus was a fourth felony offender. After a hearing on the matter, the trial court found Pettus to be a fourth felony offender, vacated the original sentence, and sentenced him to life imprisonment. In a companion case, this Court affirmed the adjudication as a fourth felony offender. In that opinion we considered and rejected Pettus’ | ¡¡argument that the life sentence was constitutionally excessive. However, we remanded the matter to the trial court for clarification of sentence after an errors patent review of the record revealed that the trial court did not indicate if the sentence was to be served at hard labor.

Pettus filed a motion for clarification of sentence, in accordance with this Court’s opinion, and the matter was taken up in the trial court. On remand, the trial court clarified that Pettus was sentenced as a fourth felony offender to life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence to run consecutively with the sentence in case No. 08^f739. Pettus appeals that sentence again asserting that it is constitutionally excessive. His argument in this appeal is the same as the one we considered in the former appeal, that his life sentence is excessive considering the last crime committed was a theft of three belts, valued at $307, from Dillard’s Department Store.

In our prior opinion, we stated:
Defendant was adjudicated a fourth felony offender based upon three prior convictions: (1) possession of cocaine in 24th Judicial District Court case number 98-9036; (2) obstruction of justice in 24th Judicial District Court case number 99-673; and (3) a conviction for bank robbery out of the United States District Court for the Southern District of Mississippi. In addition, Defendant pleaded guilty to possession of cocaine in St. Bernard Parish in 2000 and currently has pending charges in St. Tammany Parish and in the state of Georgia for bank robbery. Further, with respect to the obstruction of justice conviction, Defendant testified during the habitual offender hearing that the conviction stemmed from his arrest on a second degree murder charge.
In imposing the life imprisonment at hard labor sentence, the trial court considered the facts of the instant offense and Defendant’s lengthy criminal record. The trial court noted that Defendant told the victim, “Don’t make me get violent,” and that Defendant grabbed the victim and threw her to the ground. The trial court concluded that Defendant would continue to commit crimes during any period of not being incarcerated. The trial court further noted that Defendant had committed violent crimes in the past and indicated his opinion that any lesser sentence would deprecate [4the seriousness of the offense. Based on the record, and considering the facts of the instant offense combined with the defendant’s criminal history, we find that the sentence is not shocking or grossly disproportionate to Defendant’s behavior and is not constitutionally excessive.

This matter was only remanded for clarification of sentence, not for re-sentencing. This Court did not vacate Pettus’ life sentence and specifically found that the sentence was not constitutionally excessive. Therefore, the issue of excessiveness has been resolved in our prior opinion and is now law of the case.

Under the doctrine of “law of the case,” an appellate court will generally refuse to reconsider its own rulings of law on a subsequent appeal in the same case. The law of the case doctrine is discretionary. Reconsideration of a prior ruling is warranted when, in light of a subsequent trial record, it is apparent that the determination was patently erroneous and produced unjust results.

In the matter before this Court, we find no reason to reconsider our prior ruling. Pettus has raised no new arguments, jurisprudence, or evidence to warrant our reconsideration. Accordingly, Pettus’ argument will not be considered in this opinion.

In our review of the record for errors patent, we find that Pettus was adjudicated a fourth felony offender pursuant to La. R.S. 15:529.1(A)(4)(a). Such a sentence does not provide for a prohibition on parole. However, on remand, the trial judge clarified that the enhanced sentence was to be served without benefit of parole, probation, or suspension of sentence. Accordingly, we find the trial court |fierred in restricting parole. We amend the sentence to allow for the possibility of parole in accordance with the applicable sentencing provisions and order the trial court to correct and amend the commitment to reflect the availability of parole. We further order the Clerk of Court for the Twenty-Fourth Judicial District Court to transmit the original of the amended commitment to the officer in charge of the institution in which Pettus is incarcerated.

SENTENCE AMENDED AND, AS AMENDED, AFFIRMED; MATTER REMANDED WITH ORDERS

      . State v. Pettus, 10-215 (La.App. 5 Cir. 5/24/11), 68 So.3d 21, writ denied, 11-1325 (La. 12/2/11), 76 So.3d 1176.

      . State v. Pettus, 10-777 (La.App.5 Cir. 5/24/11), 68 So.3d 28, writ denied, 11-1326 (La. 12/2/11), 76 So.3d 1176.

      . The appeal of the conviction on that crime is also before this Court in State v. Pettus, 11-861 (La.App. 5 Cir. 5/22/12), 96 So.3d 584.

      . State v. Pettus, 68 So.3d at 31.

      . State v. Doussan, 05-586 (La.App. 5 Cir. 2/14/06), 924 So.2d 333, 339, writ denied, 06-608 (La. 10/13/06), 939 So.2d 372.

      . State v. Lathers, 09-20 (La.App. 5 Cir. 5/26/09), 15 So.3d 1068, 1070, writ denied, 09-1341 (La.2/12/10), 27 So.3d 841.

      . State v. Jacobs, 04-1219 (La.App. 5 Cir. 5/31/05), 904 So.2d 82, 88, writ denied, 05-2072 (La.4/28/06), 927 So.2d 282, cert. denied, 549 U.S. 956, 127 S.Ct. 385, 166 L.Ed.2d 276 (2006).

      . (4) If the fourth or subsequent felony is such that, upon a first conviction the offender would be punishable by imprisonment for any term less than his natural life then:
      (a) The person shall be sentenced to imprisonment for the fourth or subsequent felony for a determinate term not less than the longest prescribed for a first conviction but in no event less than twenty years and not more than his natural life.

      . See also, La. R.S. 15:529.1(G).

      . State v. Battaglia, 03-692 (La.App. 5 Cir. 11/25/03), 861 So.2d 704, 711, writ denied, 04-1701 (La.4/29/05), 901 So.2d 1058.

      . State v. Collins, 09-283 (La.App. 5 Cir. 12/8/09), 30 So.3d 72, 88, writ denied, 10-34 (La.9/3/10), 44 So.3d 696.