text:
    Trevor HOLMES v. LOUISIANA DEPARTMENT OF PUBLIC SAFETY AND CORRECTIONS.
    No. 2011 CA 2221.
    Court of Appeal of Louisiana, First Circuit.
    June 8, 2012.
    Rehearing Denied June 29, 2012.

      Trevor Holmes, Jackson, LA, Plaintiff Appellant, In Proper Person.
    Jonathan R. Yining, Baton Rouge, LA, for Defendant-Appellee, James M. Le-Blanc, Secretary, Louisiana Department of Public Safety and Corrections.
    Before CARTER, C.J., PARRO, and HIGGINBOTHAM, JJ.
   HIGGINBOTHAM, J.

1 ^Plaintiff-appellant, Trevor Holmes, is an inmate in the custody of the Louisiana Department of Public Safety and Corrections (DPSC). Holmes filed a petition for judicial review in the Nineteenth Judicial District Court, seeking review of DPSC’s final administrative decision rendered under the Corrections Administrative Remedy Procedure Act. Holmes challenged DPSC’s computation of his parole eligibility date. The district court affirmed the DPSC decision. For the following reasons, we affirm the district court judgment.

BACKGROUND

The district court commissioner ordered DPSC to file supplemental documentation in the administrative record that indicated Holmes was convicted of manslaughter and attempted manslaughter on February 12, 1998. Holmes was sentenced to serve 40 years at hard labor for manslaughter and 20 years at hard labor for attempted manslaughter, to be served concurrently. This court affirmed Holmes’s convictions and sentences in his criminal appeal. State v. Holmes, 99-0631 (La.App. 1st Cir.2/18/00), 754 So.2d 1132, 1133, writ denied, 788 So.2d 440 (La.2001).

DPSC calculated Holmes’s parole eligibility based on the amended provisions of La. R.S. 15:574.4(B), effective January 1, 1997, which requires that inmates convicted of a crime of violence serve 85% of their sentence prior to being deemed parole eligible. Holmes maintains that his offenses were committed on December 4, 1995, which was prior to the effective date of the referenced statute, and therefore, DPSC’s application of the 85% provision to his parole eligibility [¡¡constituted an ex post facto application of the law in violation of his constitutional rights. Additionally, Holmes argues .that DPSC’s application of the 85% provision to his parole eligibility is contrary to this court’s ruling concerning his application for a supervisory writ of review in his criminal case, involving the district court’s denial of his motion to correct an illegal sentence. See State v. Holmes, 2011-0951 (La.App. 1st Cir.8/22/11) (unpublished writ action).

Following an October 8, 2010 hearing, the commissioner issued a recommendation that DPSC’s final administrative decision be affirmed, reasoning that Holmes was convicted after the effective date of the pertinent statutory provisions, which specifically provided that the 85% provision only applied to persons convicted of offenses on or after January 1, 1997. The commissioner also noted that a change in the law affecting an inmate’s parole eligibility does not violate the prohibition against ex post facto laws, because the amended statute did not alter the definition of criminal conduct nor increase the penalty, citing State ex rel. Olivieri v. State, 2000-0172 (La.2/21/01), 779 So.2d 735, 744, cert. denied, 533 U.S. 936, 121 S.Ct. 2566, 150 L.Ed.2d 730 (2001), and Williams v. Creed, 2007-0614 (La.App. 1st Cir.12/21/07), 978 So.2d 419, 423-24, writ denied, 2008-0433 (La.10/2/09), 18 So.3d 111.

After conducting a de novo review, the district court adopted the commissioner’s recommendation as its reasons for its July 2, 2011 judgment, affirming DPSC’s final administrative decision and dismissing Holmes’s petition with prejudice and at his cost. Holmes appeals the district court’s judgment, still maintaining his ex post fac- to claim and contending that the district court’s [ Judgment is contrary to this court’s ruling in his criminal case. We disagree with Holmes’s position.

ANALYSIS

At the outset, we note that our August 22, 2011 criminal writ action occurred after the district court’s July 2, 2011 judgment in this civil matter. In the criminal matter, we granted a supervisory writ of review concerning the district court’s denial of Holmes’s motion to correct an illegal sentence. In that criminal writ proceeding, we merely amended the district court’s illegally restrictive sentences and, because we found that the district court’s sentencing error was non-discretionary, we removed the reference to Holmes’s parole eligibility in his sentences. We followed well-established jurisprudence, holding that parole eligibility is to be determined by DPSC pursuant to the directives of La. R.S. 15:574.4, not by the district court. See St. Amant v. 19th Judicial District Court, 94-0567 (La.9/3/96), 678 So.2d 536, enforcement granted, 94-0567 (La.6/27/97), 696 So.2d 984. See also, State v. Lanieu, 98-1260 (La.App. 1st Cir.4/1/99), 734 So.2d 89, 96, writ denied, 99-1259 (La.10/8/99), 750 So.2d 962, and State v. Miller, 96-2040 (La.App. 1st Cir.11/7/97), 703 So.2d 698, 701, writ denied, 98-0039 (La.5/15/98), 719 So.2d 459. The criminal writ proceeding has no bearing on our ruling in this civil appeal, which involves the separate and distinct matter of whether DPSC correctly applied La. R.S. 15:574.4 to calculate Holmes’s parole eligibility in its final administrative decision. It is important to note that parole eligibility and eligibility for parole consideration are distinct and different matters. Bosworth v. Whitley, 627 So.2d 629, 631 (La.1993). See also Lay v. Louisiana Dept. of Correction-Stalder ex rel. Ieyoub, 98-0592 (La.App. 1st Cir.4/1/99), 734 So.2d 782, 785, writ denied, 99-1173 (La.9/17/99), 747 So.2d 1102.

|sAs for the ex post facto claim, Holmes relies on our decision in Lanieu, 734 So.2d at 96. He argues that under Lanieu, application of the 85% provision to his offenses, which were committed prior to the effective date of the 1995 amendment of La. R.S. 15:574.4(B), exposed him to additional penalties for his criminal conduct in violation of the constitutional prohibitions against ex post facto laws. However, we agree with the commissioner’s reasoning and point out that the Louisiana Supreme Court narrowed the focus of ex post facto analysis in the Olivieri case, which was decided after the now out-dated Lanieu. While the supreme court recognized that, in previous ex post facto analysis, Louisiana jurisprudence had broadly focused on whether the change in a law operated to the disadvantage of an accused, the Olivieri, court adopted the federal approach to ex post facto analysis, focusing on whether the change in the law altered the definition of criminal conduct or increased the penalty by which the crime was punishable. Olivieri, 779 So.2d at 743-44; Williams, 978 So.2d at 423. Thus, the relevant inquiry is not whether a subsequent change in the law operated to an inmate’s disadvantage or impacted an inmate’s parole eligibility, but whether the change in the law altered the definition of criminal conduct or increased a criminal penalty. Olivieri,, 779 So.2d at 743-44. Because the 1995 amendment of La. R.S. 15:574.4(B) merely affected Holmes’s parole eligibility calculations, and did not expose him to additional penalties for his criminal conduct or alter the definition of the criminal conduct, we find that there was no ex post facto violation.

CONCLUSION

After an extensive review of the entire record, we agree with the district court’s judgment upholding DPSC’s decision and dismissing Holmes’s petition. The 85% provision in La. R.S. 15:574.4(B) became effective before Holmes was convicted. Furthermore, changes in parole eligibility calculations in the amended statute do not alter the definition of criminal conduct or increase the penalty by [ fiwhich the crime was punishable. Consequently, DPSC’s application of the 85% provision to Holmes’s parole eligibility does not implicate ex post facto restrictions. Thus, Holmes’s contention that DPSC has improperly calculated his parole eligibility date is without merit. Therefore, we affirm the judgment of the district court. All costs of this appeal are assessed to plaintiff-appellant, Trevor Holmes.

AFFIRMED.

      . The office of commissioner of the Nineteenth Judicial District Court was created by La. R.S. 13:711 to hear and recommend disposition of criminal and civil proceedings arising out of the incarceration of state prisoners. La. R.S. 13:713(A). The commissioner's written findings and recommendations are submitted to a district court judge, who may accept, reject, or modify them. La. R.S. 13:713(C)(5).

      . Manslaughter and attempted manslaughter are crimes of violence. See La. R.S. 14:2(B)(4).

      . Louisiana Revised Statute 15:574.4(B) was amended and reenacted by 1995 La. Acts, No. 1099, § 1, effective January 1, 1997. Section 3 of Act 1099 specifically states that the "provisions of this Act shall apply only to persons convicted of offenses on or after the effective date of this Act.” (Emphasis added.) The focus of Section 3 is on the date of conviction, not the date the offenses were committed. If the legislature had intended for the date of the offense to trigger whether Act 1099 applied, it could have easily provided that the Act would apply only to persons convicted of offenses committed on or after the effective date of the Act.


source: Caselaw Access Project

author: GAIDRY, J.

license: Public Domain

text:
    LOUISIANA WORKERS’ COMPENSATION CORPORATION v. LOUISIANA DEMOLITION, INC. Louisiana Workers’ Compensation Corporation v. Louisiana Demolition, Inc.
    Nos. 2011 CA 2232, 2011 CW 2398.
    Court of Appeal of Louisiana, First Circuit.
    June 8, 2012.

      Paul Rumage, Baton Rouge, LA, for Defendant/Relator Louisiana Demolition, Inc.
    Chad S. Berry, Baton Rouge, LA, for Plaintiff/Respondent Louisiana Workers’ Compensation Corporation.
    Before GAIDRY, McDONALD, and HUGHES, JJ.
   GAIDRY, J.

| ¿This is an appeal from the Nineteenth Judicial District Court’s granting of an exception of no cause of action for the appellee, Louisiana Workers’ Compensation Corporation (“LWCC”), and against the appellant, Louisiana Demolition, Inc. (“La. Demo”), dismissing the appellant’s petition for nullity of judgment, with prejudice. A supervisory writ filed by La. Demo seeking this Court’s review of an overruling by the Nineteenth Judicial District Court of its objection to the excessiveness of appeal costs was referred to this appeal panel. For the following reasons, we grant the writ and remand the issue to the trial court for further proceedings, and we affirm the trial court’s ruling on the exception for no cause of action.

FACTS AND PROCEDURAL HISTORY

LWCC filed an original petition on or about November 6, 2008. The defendant, La. Demo, was served with personal service through its agent for service of process. La. Demo neither answered nor filed any responsive pleadings, and a preliminary default was entered against it on October 18, 2010 and a default judgment was signed on November 23, 2010.

La. Demo filed a “Petition for Nullity,” which does not explain why it failed to appear and defend the suit itself; rather, the petition for nullity focuses on the evidence introduced by LWCC, which La. Demo claims fails to establish a prima facie case. La. Demo claims the insufficiency of LWCC’s evidence amounts to fraud or ill practices, which are grounds to annul a judgment under Louisiana Code of Civil Procedure article 2004.

LWCC filed an exception raising the objection of no cause of action, which the trial court granted. The trial court stated that the issues raised in the petition for nullity “are issues either for a new trial or appeal.”

| sLa. Demo timely filed a motion and order for appeal on the court’s ruling on the exception of no cause of action. The order granting a devolutive appeal was signed on August 31, 2011. The Clerk of Court for the 19th JDC mailed a “Notice of Estimated Appeals Charges” to La. Demo’s counsel on September 19, 2011. On October 10, 2011, La. Demo filed an objection to the excessiveness of the costs. The trial court, ex parte, overruled the objection as untimely, giving as reason that La.C.C.P. art. 2126 grants the movant twenty days from the mailing of notice of the costs to file the motion. Notice of costs was sent to La. Demo on September 19, 2011, and the court concluded the twenty day period ended on October 9, 2011, making La. Demo’s filing untimely by one day.

STANDARD OF REVIEW

Supervisory Writ

The date which La. Demo filed the writ is not in dispute. In a case in which there are no contested issues of fact, and the only issue is the application of the law to the undisputed facts, the proper standard of review is whether or not there has been legal error. Starks v. American Bank Nat. Ass’n, 2004-1219, p. 2, 3 (La.App. 3 Cir. 5/4/05), 901 So.2d 1243,1245.

Exception of No Cause of Action

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. 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. No evidence may be introduced to support or controvert an exception of no cause of action. Consequently, the court reviews the petition and accepts well-pleaded allegations of fact as |4true. The issue at the trial of the exception is whether, on the face of the petition, the plaintiff is legally entitled to the relief sought. Aycock v. Chicola, 09-563, p. 3 (La.App. 3 Cir.12/16/09) 27 So.3d 1005, 1007. Therefore, exceptions of no cause of action present legal questions, and are reviewed under the de novo standard of review. Phillips v. Gibbs, 2010-0175 (La.App. 4 Cir.5/21/10), 39 So.3d 795, 797.

DISCUSSION OF SUPERVISORY WRIT

Little needs to be said of the supervisory writ, because the trial court admitted it had miscalculated the time period for La. Demo to file its objection to the excessiveness of appeal costs. Succinctly, October 10, 2011 was the last day for La. Demo to file the objection, because October 9 fell on a Sunday. Therefore the deadline to file had to be carried over to the next day pursuant to La.C.C.P. art. 5059. We acknowledge the miscalculation, grant the supervisory writ, and remand the matter to the trial court for further proceedings, if any are to be had.

ASSIGNMENTS OF ERROR

The assignments of error on appeal are as follows:

|sThe trial court abused its discretion (committed reversible error) in ruling that La. ■ Demo’s petition of nullity failed to state a cause of action;

The trial court abused its discretion (committed reversible error) in considering the entire record and not solely the petition for nullity in ruling that the petition for nullity failed to state a cause of action;

The trial court abused its discretion (committed reversible error) in denying La. Demo the opportunity to amend the petition to state a cause of action.

DISCUSSION

This appeal comes before us because of an exception of no cause of action, which is triable on the face of the papers, and for the purpose of determining the issues raised by the exception, the court must presume that all well-pleaded facts in the petition are true. All reasonable inferences are made in favor of the nonmoving party in determining if the law affords any remedy. Blackett v. City of Monroe, 33, 339 (La.App. 2 Cir. 9/7/00), 766 So.2d 768, 770. If the allegations set forth a .cause of action as to any part of the demand, the exception must be overruled. Lambert v. Riverboat Gaming Enforcement Division, 96-1856, p. 4 (La.App.1 Cir. 12/29/97), 706 So.2d 172, 175. We must therefore first examine La. Demo’s petition for nullity to determine whether the allegations are well-pleaded.

La. Demo’s statement of facts begins on paragraph 4 of the petition. The earlier proceedings of the court are laid out. Although La. Demo states the facts through its own biased perspective, the facts up to this point are essentially undisputed and do not put forth anything that resembles a cause of action. We accept those facts as true. In paragraph 13, however, La. Demo claims that LWCC “failed to offer adequate prima facie evidence to support the Judgment” and case law for support. What La. Demo is doing | (;here is making a legal conclusion, not an allegation based on fact. La. Demo’s conclusive statements go on from there, basing all of its allegations on the contention that LWCC did not make a prima facie case. This claim is conclusive because the trial court did not rule that no prima facie case was made in LWCC’s original petition; La. Demo makes the claim of its own volition and seeks to prove the legal argument through its petition. Legal arguments are appropriate in memoranda, but not in petitions that have to be completely factual. La. Demo’s petition, therefore, does not meet the threshold standard that Lambert requires. While Blackett requires us to accept well-pleaded facts as true, we are not required to accept La. Demo’s legal arguments as true.

Neither was the trial court required to accept the legal conclusions as true. La. Demo claims the trial court erred by going outside of its petition to rule on the exception. The trial court recognized in its oral reasons for judgment of August 1, 2011 that La. Demo’s petition for nullity centered on whether or not LWCC presented a prima facie case to the court. While it is true that review of an exception for no cause of action should be limited to the four corners of the petition, the trial court’s review of anything else in the record for this case would be harmless error at most. The petition is deficient on its face because it never states what constitutes the “prima facie evidence” that LWCC was required, but failed to present. Often a prima facie evidence standard is put forth in a statute or code article. La. Demo alludes to no such thing, and neither we nor the trial court should assume facts La. Demo may have relied upon for its legal argument if La. Demo does not provide them in its own petition. LWCC’s exception of no cause of action was properly sustained, and both of La. Demo’s assignments of error which allege the trial court erred in ruling the petition for nullity failed to |7state a cause of action are without merit. Likewise, the assignment of error claiming the trial court exceeded the boundaries of the petition in ruling on the exception of no cause of action is without merit.

The final assignment of error claims the trial court erred by disallowing La. Demo to amend its petition of nullity in order to state a cause of action. Upon a complete review of the record, we see that allowing La. Demo to do so would be an act of futility that would unreasonably occupy the trial court’s time. The main issue here is whether La. Demo can allege facts that it was a victim of fraud or ill practices by either LWCC or the trial court.

La. Demo’s petition for nullity is based on the language of La.C.C.P. art. 2004, which states:

A. A final judgment obtained by fraud or ill practices may be annulled.
B. An action to annul a judgment on these grounds must be brought within one year of the discovery by the plaintiff in the nullity action of the fraud or ill practices.
C. The court may award reasonable attorney fees incurred by the prevailing party in an action to annul a judgment on these grounds.

La. Demo’s petition makes extensive use of the term “fraud and ill practices” when discussing the court’s awarding of interest and attorney fees to LWCC. LWCC’s deficient evidence, according to La. Demo, fails to present a prima facie case and equates to fraud and ill practices. To support this argument, La. Demo cites Kem Search, Inc. v. Sheffield, 434 So.2d 1067 (La.1983), which states that La.C.C.P. art. 2004 is not limited to cases of actual fraud or intentional wrongdoing, but is sufficiently broad to encompass all situations wherein a judgment is rendered through some improper practice or procedure which operates, even innocently, to deprive Rthe party cast in judgment of some legal right, and where the enforcement of the-judgment would be unconscionable and inequitable. Id. at 1070.

La. Demo uses for factual similarity the case Temple v. Jackson, 376 So.2d 972 (La.App. 1 Cir.1979), where a vendor who had been granted a default judgment in a breach of contract claim failed to enter into evidence adequate testimony and documents to prove damages at the confirmation of the default hearing. Likewise, La. Demo claims that LWCC presented as evidence an affidavit of correctness of account where the affiant allegedly did not have personal knowledge of the total amount of unpaid premiums discovered in the audit of La. Demo’s financial records. According to La. Demo, this evidence is not sufficient to present a prima facie case on which a default judgment can be granted. In Temple, the Louisiana Supreme Court held that a lack of evidence such as was involved in that case constituted an ill practice sufficient to warrant annulment of the default judgment against the vendee. Id. With the Kem Search, Inc. and Temple cases together, La. Demo believes the default judgment rendered against it came from a kind of fraud or ill practice that might not have been intentional on the part of LWCC, but certainly arises to the level of improper procedure that deprived La. Demo of a right to defend against LWCC’s claims. We disagree.

La. Demo’s widespread inaction in its own defense cannot go unnoticed. La. Demo did not answer LWCC’s original petition, even though there is no dispute that La. Demo’s authorized agent was served. La. Demo did not file any exceptions, raise any affirmative defenses, or move for summary judgment against what it claims was poor evidence that did not even satisfy the minimal requirements of a prima facie case. La. Demo did not appeal the default judgment, where the allegations in its petition for nullity could have served well as assignments of error. Instead, La. Demo ^waited until the eleventh hour to file this petition for nullity, which it had the legal right to do, where it essentially hashes out complaints that could have been resolved long before.

The action for nullity based on fraud or ill practices is not intended as a substitute for an appeal or as a second chance to prove a claim which was previously denied for failure of proof. The purpose of a nullity action is to prevent injustice which cannot be corrected through new trials and appeals. First Lake Properties, Inc. v. Smith, 09-973, p. 6 (La.App. 5 Cir. 4/27/10), 40 So.3d 215, 218. The claims asserted by La. Demo in its petition for nullity could have been easily handled in an appeal, because La. Demo essentially claims the trial court abused its discretion in its award of interest and attorney fees. La. Demo provides a very weak argument to explain its inaction, in that it filed no pleadings in the anticipation that the court would see that LWCC could not prove a prima facie case with the evidence presented. The absence of-a valid and sufficient reason for a party’s failure to defend a suit in which a default judgment was taken precludes that party from later maintaining an action for nullity of the judgment based on fraud or ill practices which could and should have been pleaded in the original suit. Mitchell v. Crane, 485 So.2d 613, 615 (La.App. 4 Cir.1986).

Fraud or ill practices which justify the annulment of a final judgment occur when the circumstances under which the judgment was rendered show the deprivation of legal rights of the litigant who seeks relief and when the enforcement of the judgment would be unconscionable and inequitable. Kem Search, 434 So.2d at 1070. In the instant case, La. Demo was not deprived of any legal right; La. Demo waived its legal rights through its inaction. La. Demo could not remedy its defective petition by amendment. This assignment of error lacks merit.

^CONCLUSION

From what is provided in the petition for nullity, we see that La. Demo presents conclusive legal arguments instead of factual allegations to prove fraud or ill practices that deprived it of a legal right to defend against LWCC’s original petition, and no cause of action exists. Nothing would prove La. Demo has a cause of action for nullity of judgment, because the failure to exercise a right is not the same as losing the right through inappropriate judicial procedure. We therefore affirm the trial court’s sustaining the exception.

DECREE

The supervisory writ filed by La. Demo to review the Nineteenth Judicial District Court’s overruling of its objection to the excessiveness of appeals costs for being untimely is granted. The previous ruling by the trial court is vacated and the matter is remanded to the trial court for further proceedings consistent with this opinion. The trial court’s ruling sustaining the ap-pellee LWCC’s exception for no cause of action against the appellant La. Demo is affirmed. All costs of this appeal are assessed to the appellant.

JUDGMENT AFFIRMED; WRIT GRANTED, and REMANDED

HUGHES, J„ concurs.

      . The original petition was to assert a claim for an audit against Louisiana Demolition, Inc. and for any amount found to be due.

      . Louisiana Revised Statutes § 1:55 states, in pertinent part:
      A. The following shall be days of public rest and legal holidays and half-holidays: (1) The following shall be days of public rest and legal holidays: Sundays; ...

      . Louisiana Code of Civil Procedure article 5059 provides:
      In computing a period of time allowed or prescribed by law or by order of court, the date of the act, event or default after which the period begins to run is not included. The last day of the period is to be included, unless it is a legal holiday, in which event the period runs until the end of the next day which is not a legal holiday.

      .Counsel for appellant had some discussion with the trial court over whether the matter of the excessiveness of appeal costs was moot. We do not believe the issue is moot, and remand out of an abundance of caution.


text:
    STATE of Louisiana v. Louis LAMBERT.
    No. 2011 KA 2006.
    Court of Appeal of Louisiana, First Circuit.
    June 8, 2012.

      Ricky L. Babin, District Attorney, Donald D. Candell, Assistant District Attorney, Gonzales, LA, for Appellee, State of Louisiana.
    Gwendolyn K. Brown, Baton Rouge, LA, for Defendant/Appellant, Louis Lambert.
    Before GAIDRY, McDONALD, and HUGHES, JJ.
   GAIDRY, J.

12The defendant, Louis Lambert, was charged by an amended grand jury indictment with the following: 24 counts of possession of cocaine, in violation of La. R.S. 40:967(C); 336 counts of malfeasance in office — tampering with evidence, in violation of La. R.S. 14:134.2; 4 counts of theft of a firearm, in violation of La. R.S. 14:67.15; 14 counts of illegal possession of a firearm, in violation of La. R.S. 14:95(E); 11 counts of possession of a legend drug without a prescription, in violation of La. R.S. 40:1238.1; 1 count of possession of oxycodone, in violation of La. R.S. 40:967(C); 1 count of possession of trenbo-lone acetate (steroids), in violation of La. R.S. 40:968(C); and 1 count of possession of alprazolam (xanax), in violation of La. R.S. 40:969(C). The defendant initially pled not guilty. The defendant then filed a Motion to Quash the Indictment, which the trial court denied. Thereafter, the defendant changed his plea to guilty and entered a Crosby plea based on the ruling on the Motion to Quash.

The defendant was then sentenced as follows: on each count of possession of cocaine, committed to the Department of Corrections for a period of two (2) years at hard labor, and a fine of five hundred dollars ($500), with each count concurrent; on each count of malfeasance in office, committed to the Department of Corrections for a period of two (2) years at hard labor, with each count concurrent; on each count of theft of a firearm, committed to the Department of Corrections for a period of five (5) years at hard labor, with two (2) years to be served without benefit of parole, probation, or suspension of sentence, and a fine of ten thousand dollars ($10,000), with each count concurrent; on each count of illegal possession of |sa firearm, committed to the Department of Corrections for a period of ten (10) years at hard labor, with five (5) of the years to be served without benefit of parole, probation or suspension of sentence, and five (5) years suspended and placed on supervised probation, and a fine of one thousand dollars ($1,000), with each count concurrent; on each count of possession of a legend drug, committed to the Department of Corrections for a period of one (1) year, and a fine of one hundred dollars ($100), with each count concurrent; on the count of possession of oxycodone, committed to the Department of Corrections for a period of two (2) years, and a fine of one hundred dollars ($100); on the count of possession of trenbolone acetate (steroids), committed to the Department of Corrections for a period of two (2) years, and a fine of one hundred dollars ($100); and on the count of possession of alprazolam (xa-nax), committed to the Department of Corrections for a period of two (2) years, and a fine of one hundred dollars ($100). All periods of incarceration were ordered to run concurrently and the defendant was given credit for all time served.

In addition, the court found that the Louisiana State Police, the 23rd Judicial District Attorney’s Office, and the Assumption Parish Sheriffs Office suffered direct economic injury as a result of the defendant’s actions and ordered restitution as follows: to the Louisiana State Police, the amount of four thousand, four hundred and thirteen dollars and 29/100 ($4,413.29); to the 23rd Judicial District Attorney’s Office, the amount of one thousand, seven hundred and sixty-nine dollars and 56/100 ($1,769.56); and to the Assumption Parish Sheriffs Office, the amount of fifteen thousand, seven hundred and thirty-six dollars and 66/100 ($15,736.66). The defendant now appeals, designating two assignments of error. We affirm the convictions and affirm all sentences as imposed except for the sentences on theft of a 1 ^firearm, which are amended to reduce each fine to one thousand dollars ($1,000), and affirmed as amended.

FACTS

The offenses for which the defendant, Louis Lambert, was charged occurred during his tenure as the evidence custodian of the Assumption Parish Sheriffs Office. The defendant became employed by the Sheriffs Office as a deputy in 1990 and for the ten years prior to his arrest, he was the custodian of the Assumption Parish Sheriffs Office evidence vault. Evidentia-ry abnormalities in drug-related cases prompted an investigation by the Sheriffs Office and the Louisiana State Police, which ultimately revealed that the defendant had removed, tampered with, and/or altered drugs and other items from the evidence vault in an effort to support a significant substance abuse problem.

In the course of that investigation, on April 8, 2010, Louisiana State Police executed a search warrant on the defendant’s personal residence in Labadieville, Louisiana. Inside the defendant’s home were located numerous Assumption Parish Sheriffs Department evidence envelopes from known investigations, current Assumption Parish prosecutions, as well as unknown cases, in which the evidence had been removed, tampered with, and/or altered. Additionally, inside the home were found quantities of cocaine, oxycodone, trenbolone acetate (steroids), alprazolam (xanax), marijuana, numerous legend drugs, and drug paraphernalia. Kept alongside these items were 14 guns. Included among those guns were a Ruger .22 caliber handgun located with a gallon-size bag of marijuana inside of the defendant’s bedroom closet, and an SKS 762 semiautomatic rifle located with marijuana in the defendant’s living room. The evidence vaults were subsequently audited and inventoried, at which time it was discovered that |,5numerous evidence envelopes, as well as the evidence inside, had been tampered with and/or altered. In total, the evidence in 336 cases was tampered with, altered and/or removed by the defendant. The defendant admitted that he knew or had reason to believe that the objects or substances were or would be the subject of investigation by state, federal, local or municipal law enforcement officers, and that he acted with the intent of distorting the results of those investigations. Shortly after the investigation was launched, the defendant voluntarily enrolled in a drug rehabilitation program.

Victim impact letters were submitted by the Louisiana State Police, the 23rd Judicial District Attorney’s Office, and the Assumption Parish Sheriffs Office. The Louisiana State Police requested restitution in the amount of $2,811.78. This amount represented the overtime costs for a crime lab analyst and a technician who spent almost 120 hours re-analyzing and re-categorizing evidence tampered with by the defendant. The State Police also identified $3,457.29 in overtime expenses for officers relative to this case, and $956.00 in administrative expenses such as paper and storage. The District Attorney’s Office requested restitution in the amount of $1,769.56 in direct costs. This amount was for consultation with an expert in attorney ethics retained to advise on the proper procedures to completely fulfill the ethical obligations imposed on the District Attorney’s Office in the handling of cases with compromised evidence, and for the supply and postage expenses incurred with mailings made in compliance with disclosure requirements. The Assumption Parish Sheriffs Office requested restitution in the amount of $15,736.66. Those costs included overtime incurred by deputies working on the investigation, a third-party vendor retained to audit |fithe property and evidence room and make recommendations, as well as miscellaneous expenses.

ASSIGNMENTS OF ERROR

Assignment of Error No. 1 — Motion to Quash

In his first assignment of error, the defendant argues that the trial court erred by denying his Motion to Quash the Indictment, specifically with respect to the charges of illegal possession of a firearm. The defendant was charged with violating La. R.S. 14:95(E), which makes it illegal to use, possess or have under his immediate control any firearm while in the possession of a controlled dangerous substance. The defendant apparently does not dispute that his actions constituted a violation of this statute. Rather, the defendant argues that another part of that statute, La. R.S. 14:95(G), provides immunity to him as a sheriffs deputy and that he could not, therefore, be charged with the offense of illegal carrying of weapons.

In denying the defendant’s motion to quash, the trial court noted that criminal statutes are to be strictly construed, but that “when [the] court looks at the statute and the argument posed by the defendant, the court finds that that would lead to absurd results, that there is no way that the court could reasonably conclude that the defendant was discharging his official duties or was in anyway acting in the furtherance of his employment as a police officer. In that regard, the court is going to deny the motion to quash.” The defendant argues that the trial court misread La. R.S. 14:95(G) and that a fair reading of the statute supports his position that law enforcement officers are exempt from the provisions of the statute.

When a trial court denies a motion to quash, factual and credibility determinations should not be reversed in the absence of a clear abuse of the trial court’s discretion. However, a trial court’s legal findings are subject to |7a de novo standard of review. See State v. Harris, 2011-0779 (La.App. 1st Cir.11/09/11), 79 So.3d 1037, 1044-45. In this case, the issue raised presents a question of law and is, therefore, subject to de novo review. See State v. Hinton, 2008-1849 (La.App. 1st Cir.2/13/09), 6 So.3d 242, 244, writ denied, 2009-0821 (La.3/4/11), 58 So.3d 466.

Louisiana Revised Statutes. 14:95(G)(1) provides:

The provisions of this Section except Paragraph (4) of Subsection A shall not apply to sheriffs and their deputies, state and city police, constables and town marshals, or persons vested with police power when in the actual discharge of official duties. These provisions shall not apply to sheriffs and their deputies and state and city police who are not actually discharging their official duties, provided that such persons are full time, active, and certified by the Council on Peace Officer Standards and Training and have on their persons valid identification as duly commissioned law enforcement officers.

Criminal statutes in the Louisiana Criminal Code must be given “a genuine construction, according to the fair import of their words, taken in their usual sense, in connection with the context, and with reference to the purpose of the provision.” La. R.S. 14:3. Moreover, it is a well-established tenet of statutory construction that criminal statutes are subject to strict construction under the rule of lenity. State v. Odom, 2007-0516 (La.App. 1st Cir.7/31/08), 993 So.2d 663, 671 (per curiam). Legislative intent is the fundamental question in all cases of statutory interpretation, and rules of statutory construction are designed to ascertain and enforce the intent of the statute. State v. Odom, 993 So.2d at 671. In construing the applicable criminal statute, we consider two established rules of statutory construction: (1) all criminal statutes are constructed strictly; and (2) the words of a statute must be given their everyday meaning. See State v. Hinton, 6 So.3d at 244; State v. Gonzalez-Perez, 2007-1813 (La.App. 1st Cir.2/27/08), 997 So.2d 1, 4, writ denied. 2009-0292 (La.12/18/09), 23 So.3d 930.

|sThe defendant complains that the trial court read the clause in the first sentence of Paragraph G, “when in the actual discharge of official duties,” as though it applied to all of the classes of persons exempted in Paragraph G. The defendant apparently, and correctly, concedes that possession at his home of misappropriated firearms and controlled dangerous substances (in violation of La. R.S. 14:95(E)) does not fall within “the actual discharge of official duties.” He argues instead that he falls under the second sentence of Paragraph G, which says that these provisions “shall not apply to sheriffs and their deputies ... who are not actually discharging their official duties, provided that such persons are full time, active, and certified by the Council on Peace Officer Standards and Training and have on their persons valid identification as duly commissioned law enforcement officers.” The defendant interprets this second sentence to mean that all law enforcement officers who are full-time and active — whether or not they are in the discharge of their official duties — are simply exempt from the provisions of La. R.S. 14:95. The State points out that the defendant’s interpretation means that any police officer, simply by designation as a full-time officer certified by the Counsel on Peace Officer Standards and Training, has immunity, even if he is committing an illegal act.

There is no legislative record to illuminate the legislature’s intent regarding the second sentence of La. R.S. 14:95(G). However, it is presumed that the legislature enacts each statute with deliberation and with full knowledge of all existing laws on the same subject. It is further presumed that a legislative branch intends to achieve a consistent body of law. State v. Odom, 993 So.2d at 671. We note that La. R.S. 14:95(G) creates other exemptions for certain classes of persons carrying illegal weapons, including: any law enforcement officer who is retired from fuUjtime9 active law enforcement service with at least twelve years service upon retirement, La. R.S. 14:95(G)(2); any enforcement officer of the office of state parks, in the Department of Culture, Recreation and Tourism who is retired from active duty as an enforcement officer, La. R.S. 14:95(G)(2); and active or retired reserve or auxiliary law enforcement officers, La. R.S. 14:95(G)(3)(a).

Though we have not, the Second Circuit Court of Appeal had occasion to address the issue of the interpretation of La. R.S. 14:95(G), though in a different context. State v. Dodson, 41,415 (La.App. 2d Cir.10/16/06), 942 So.2d 579, 589, reversed on other grounds, 2007-0057 (La.11/2/07), 967 So.2d 487 (per curiam). Their reasoning is relevant to our analysis. In Dodson, the defendant was arrested for possession of a firearm and narcotics together in his vehicle, a violation of La. R.S. 14:95(E). The defendant argued that La. R.S. 14:95(E) was unconstitutional because it denied him equal protection and due process of law as it was applied. He argued that the exceptions for law officers who were not actually discharging their official duties, retired law officers and auxiliary law enforcement officers, served no legitimate state interest and thus deprived him of equal protection of the law. In rejecting this argument, the Second Circuit observed:

With regard to the exceptions that Dodson complains of, they appear to be designed primarily to except these persons from the weapons prohibition in the statute, although by their terms they do except these persons from the drug weapons provision in section (E) as well. One rational basis for this would simply be to prevent an off-duty, reserve or retired officer from running afoul of the law inadvertently when assisting other officers or when there is a question about the on-duty or active status of the officer.

State v. Dodson, 942 So.2d at 589.

| )0We agree with the reasoning of the Second Circuit, in that a rational basis for the exemption in the second sentence of La. R.S. 14:95(G) could have been to provide immunity to off-duty police officers who were inadvertently in violation of 14:95(E) or to protect them when there was a question about their status. Clearly the legislature intended to protect officers who were properly acting in their official capacity from prosecution for illegal carrying of weapons. Likewise, we believe that the legislature intended to protect off-duty officers who were also acting properly but whose actions might otherwise subject them to criminal liability for the illegal carrying of weapons. However, we find that the legislature could not have intended the interpretation advocated by the defendant. To follow the defendant’s reading of the law would be to allow any qualified officer, without regard to what that officer was doing, to violate the provisions of 14:95(E) with complete immunity. We do not believe there is anything to indicate that, by including this language in La. R.S. 14:95(G), the legislature intended to protect criminal conduct by police officers.

In this case, the defendant clearly abused his position as custodian of the Assumption Parish Sheriffs Office evidence vault. The defendant admitted that he knew that the evidence he took or altered would be the subject of investigations by state, federal, local or municipal law enforcement officers, and that he even acted with the intent of distorting those investigations. By his actions not only did the defendant jeopardize hundreds of criminal cases, but he also violated the public trust and marred the reputation of the Sheriffs Office. To allow the defendant to now hide behind his police badge and receive immunity from criminal prosecution for his actions would be an injustice and lead to an absurd result that the legislature surely did not intend by providing immunity to certain officers Inwho are not acting in the actual discharge of official duties. We find that the trial court did not err in denying the defendant’s motion to quash the indictment. This assignment of error is without merit.

Assignment of Error No. 2—Restitution

In his second assignment of error, the defendant argues that the trial court erred in ordering him to pay restitution to the Louisiana State Police, the District Attorney’s Office, and the Assumption Parish Sheriffs Office because none of these entities were “victims” of his crimes, and he did not agree to pay restitution to them as part of his plea agreement.

The defendant did not raise this issue in the trial court below, did not file a motion to reconsider sentence, or otherwise object to the sentence. To the contrary, immediately after the trial court announced the defendant’s sentence, including the order for restitution, the defendant’s attorney said “I’m not going to be filing a Motion to Reconsider the Sentence, and there are no other motions that I would have to file prior to the filing for a Motion for Appeal, specifically the issue on the Court’s denial of the Motion to Quash.” In addition, prior to sentencing, during the hearing at which the defendant pled guilty, the defendant was made aware that the trial court had received statements from the Louisiana State Police Criminal Investigations Division and the Louisiana State Police Crime Lab, both talking about restitution and impact. The district attorney announced that he was also expecting further restitution information. A thorough review of the record indicates the defendant’s trial attorney did not make any oral or written motion to reconsider the sentence, object to restitution in general, or restitution to the particular parties.

Under the clear language of La.Code Crim. P. art. 881.1(E), failure to make or file a motion to reconsider sentence precludes a defendant from | i;>raising an objection to the sentence on appeal. One purpose of the motion to reconsider sentence is to allow the defendant to raise any errors that may have occurred in sentencing while the trial judge still has jurisdiction to change or correct the sentence. The defendant may point out such errors or deficiencies, or may present argument or evidence not considered in the original sentencing, thereby preventing the necessity of a remand for resentencing. State v. Mims, 619 So.2d 1059, 1059 (La.1993) (per curiam). The defendant’s failure to make or file a motion to reconsider sentence precludes him from raising an objection on appeal. State v. Felder, 2000-2887 (La.App. 1st Cir.9/28/01), 809 So.2d 360, 369, writ denied, 2001-3027 (La.10/25/02), 827 So.2d 1173. Thus, the defendant’s arguments concerning restitution are not properly before this court for the first time on appeal.

Moreover, even if this matter were properly preserved for review on appeal, the defendant’s substantive arguments are without merit. The defendant contends that he should not be required to pay restitution because the Louisiana State Police, the District Attorney’s Office and the Assumption Parish Sheriffs Office are not “victims” within the meaning of La.Code Crim. P. art. 883.2(A), and if they are “other victims” under 883.2(B), he should not have to pay restitution to them because that was not part of his plea agreement.

Louisiana Code of Criminal Procedure art. 883.2 states, in pertinent part:

A. In all cases in which the court finds an actual pecuniary loss to a victim, or in any case where the court finds that costs have been incurred by the victim in connection with a criminal prosecution, the trial court shall order the defendant to provide restitution to the victim as a part of any sentence that the court shall impose.
|iaB. Additionally, if the defendant agrees as a term of a plea agreement, the court shall order the defendant to provide restitution to other victims of the defendant’s criminal conduct, although those persons are not the victim of the criminal charge to which the defendant pleads. Such restitution to other persons may be ordered pursuant to Article 895 or 895.1 or any other provision of law permitting or requiring restitution to victims.

Sources of information relied upon by the sentencing court are varied and may include evidence usually excluded from the courtroom at the trial of guilt or innocence, e.g., hearsay and arrest as well as conviction records. State v. Danos, 2008-2085 (La.App. 1st Cir.7/22/09), 21 So.3d 414, 416. A review of the record in this case shows that the trial court had a sufficient basis upon which to find that the state and parish entities were in fact “victims” of the defendant’s crimes because they suffered “actual pecuniary loss” pursuant to Article 888.2(A). Specifically, the Louisiana State Police presented evidence that they incurred overtime costs of $2,811.78 for a crime lab analyst and technician who spent almost 120 hours re-analyzing and re-categorizing evidence tampered with by the defendant, $3,457.29 in overtime expenses for officers relative to this case, and $956.00 in administrative expenses such as paper and storage, in addition, because the defendant had replaced or altered drug evidence with unknown substances, crime laboratory equipment, which is very sensitive, was negatively affected and slowed down the crime laboratory as a whole. The District Attorney’s Office presented evidence that they incurred $1,148.10 in direct costs for consultation with an expert in attorney ethics who was retained to advise them on the proper procedures to completely fulfill the ethical obligations imposed on the District Attorney’s Office in the handling of cases with compromised evidence. Additionally, the District Attorney’s Office submitted evidence that they spent $621.46 for the supply and postage 114expenses incurred with mailings made in compliance with disclosure requirements for the affected cases. Finally, the Assumption Parish Sheriffs Office presented evidence that the direct financial impact to their office included approximately $4,651.00 in payroll-related costs, $10,957.00 for a third-party vendor to audit the property and evidence room and report on the findings and make recommendations, as well as other miscellaneous costs of $128.66. In addition, the Sheriffs Office noted that there were other indirect costs incurred in terms of time and resources invested in specific cases that had to be dismissed due to the defendant’s actions.

Also incurred by all were costs unquantifiable by dollars. The credibility to local law enforcement and the judicial system as a whole was damaged, likely for years to come. In considering the restitution requests from the Louisiana State Police, the District Attorney’s Office and the Assumption Parish Sheriffs Office, the trial judge observed that “[t]he significant financial impact to all of these agencies, however, pales in comparison to the effect this conduct had on the integrity of our criminal justice system.”

In light of all this specific evidence, it was appropriate for the trial court to award restitution. Each entity was a victim as they suffered an actual pecuniary loss directly attributable to the defendant’s conduct. This is not a case where the trial court erroneously imposed restitution based upon mere speculation or in an absence of testimony or documentary evidence. See State v. Danos, 21 So.3d at 416.

Having found that the Louisiana State Police, the District Attorney’s Office, and the Assumption Parish Sheriffs Office are victims under Article 883.2(A), it is unnecessary to consider the defendant’s alternative argument regarding other victims under Article 883.2(B), except to note that we | ^completely reject the defendant’s attempt to equate the instant victims to insurance companies for purposes of restitution payments.

For the foregoing reasons, the defendant’s assignment of error number two is without merit.

SENTENCING ERROR

Under La.Code Crim. P. art. 920(2), we are limited in our review to errors discoverable by a mere inspection of the pleadings and proceedings without inspection of the evidence. After a careful review of the record, we have found sentencing errors. See State v. Price, 2005-2514 (La.App. 1st Cir.12/28/06), 952 So.2d 112 (en banc), writ denied, 2007-0130 (La.2/22/08), 976 So.2d 1277.

For theft of a firearm, a defendant is to be imprisoned with or without hard labor for not less than two years nor more than ten years, without the benefit of probation, parole or suspension of sentence and fined one thousand dollars. See La. R.S. 14:67.15(C)(1). The sentencing transcript indicates the trial court sentenced the defendant to five years imprisonment at hard labor, but only two years to be served without benefit of probation, parole or suspension of sentence. Accordingly, the defendant’s sentence is illegally lenient. In addition, for illegal possession of a firearm, a defendant is to be imprisoned at hard labor for not less than five years nor more than ten years without the benefit of probation, parole or suspension of sentence and shall be fined not more than ten thousand dollars. See La. R.S. 14:95(E). The sentencing transcript indicates the trial court sentenced the defendant to five years without benefit of probation, parole or suspension of sentence, and five years suspended and on supervised probation. Accordingly, this sentence is also illegally lenient. However, since these sentences are not inherently prejudicial to the defendant, and neither the 11fiState nor the defendant has raised these sentencing issues on appeal, we decline to correct the errors. See Price, 952 So.2d at 123-25.

For theft of a firearm, however, the trial court also sentenced the defendant to pay a fine of ten thousand dollars ($10,000). Under La. R.S. 14:67.15(0, part of the penalty for a first offense of theft of a firearm is a fine of one thousand dollars ($1,000). Accordingly, the trial court’s imposition of a ten thousand dollar fine is illegally excessive. An appellate court is authorized to correct an illegal sentence pursuant to La.C.ode Crim. P. art. 882(A), when the sentence does not involve the exercise of sentencing discretion by the trial court. See State v. Haynes, 2004-1893 (La.12/10/04), 889 So.2d 224 (per curiam). The correction of this error does not involve sentencing discretion, as the one thousand dollar fine is mandatory. Therefore, on each count of theft of a firearm, we vacate the ten thousand dollar fine and amend each fine to a one thousand dollar fine, and affirm these sentences as amended.

DECREE

For the reasons set forth herein, the defendant’s convictions are affirmed. All sentences except for those for theft of a firearm are affirmed. The sentences for theft of a firearm are amended to reduce each fine to $1,000.00, and as amended, these sentences are also affirmed.

CONVICTIONS AFFIRMED, ALL SENTENCES AFFIRMED AS IMPOSED EXCEPT FOR THE FOUR SENTENCES FOR THEFT OF A FIREARM, WHICH ARE AMENDED TO REDUCE EACH FINE TO ONE THOUSAND DOLLARS ($1,000), AND AS AMENDED, AFFIRMED.

      . On that same day, another Bill of Indictment was filed that charged the defendant with 35 counts of possession of marijuana, 10 counts of possession of drug paraphernalia, and I count of theft under $300. Defendant concedes that these are misdemeanor offenses not reviewable by way of appeal.


text:
    STATE of Louisiana v. John Timothy WALDROP.
    No. 2011 KA 2363.
    Court of Appeal of Louisiana, First Circuit.
    June 8, 2012.

      Joseph L. Waitz, Jr., District Attorney, Ellen Daigle Doskey, Assistant District Attorney, Houma, LA, for Appellee State of Louisiana.
    Bertha M. Millman, Thibodaux, LA, for Defendant/Appellant John Timothy Wal-drop.
    Before GAIDRY, McDONALD, and HUGHES, JJ.
   GAIDRY, J.

|2The defendant, John Timothy Waldrop, was charged by bill of information with vehicular homicide, a violation of La. R.S. 14:32.1. The defendant pled not guilty. The defendant filed a motion in limine to exclude evidence of field sobriety tests without a Daubert hearing; and a motion to suppress statements. Following a hearing on these matters, the motions were denied. Thereafter, the defendant withdrew his prior plea of not guilty and, at a Boykin hearing, entered a Crosby plea of guilty to the charge, reserving his right to challenge the trial court’s rulings on the pretrial motions. See State v. Crosby, 338 So.2d 584 (La.1976). The defendant was sentenced to sixteen years at hard labor with the first five years of the sentence to be served without benefit of probation, parole, or suspension of sentence. The defendant was also ordered to pay a $5,000 fine. The defendant now appeals, designating two assignments of error. We affirm the conviction and sentence.

FACTS

Because the defendant pled guilty, the facts were not fully developed. According to testimony adduced at the preliminary examination and pretrial hearings, on July 22, 2007, at about 3:00 a.m., the defendant was driving a van south on La. Hwy. 24 in Terrebonne Parish. At the intersection of La. Hwy. 24 and La. Hwy. 3040, the defendant struck a vehicle being driven by Amanda Larpenter, who sustained fatal injuries as a result of the crash. The defendant was transported to Louisiana State Police Troop C where he took a Breathalyzer test. The defendant’s blood-alcohol content was .126 percent.

| ^ASSIGNMENT OF ERROR NO. 1

In his first assignment of error, the defendant argues the court erred in denying his motion to exclude evidence of the field sobriety tests. Specifically, the defendant contends that such tests are subject to scrutiny under the Daubert standard.

Louisiana Code of Evidence article 702 dictates the admissibility of expert testimony. It provides, “if scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.” State v. Higgins, 2003-1980 (La.4/1/05), 898 So.2d 1219, 1239, cert. denied, 546 U.S. 883, 126 S.Ct. 182, 163 L.Ed.2d 187 (2005). The supreme court has placed limitations on this codal provision in that, “[e]xpert testimony, while not limited to matters of science, art or skill, cannot invade the field of common knowledge, experience and education of men.” State v. Stucke, 419 So.2d 939, 945 (La.1982).

In State v. Foret, 628 So.2d 1116 (La.1993), the Louisiana Supreme Court adopted the test set forth in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), regarding proper standards for the admissibility of expert testimony which requires the trial court to act in a gatekeep-ing function to ensure that any and all scientific testimony or evidence admitted is not only relevant, but reliable. State v. Chauvin, 2002-1188 (La.5/20/03), 846 So.2d 697, 700-01. Thus, Louisiana has adopted Daubert’s requirement that in order for technical or scientific expert testimony to be admissible under La.Code Evid. art. 702, the scientific evidence must rise to a threshold level of reliability. Daubert’s general “gatekeeping” applies not only to testimony based upon scientific |4knowledge, but also to testimony based on “technical” and “other specialized knowledge.” Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 141, 119 S.Ct. 1167, 1171,143 L.Ed.2d 238 (1999); Independent Fire Ins. Co. v. Sunbeam Corp., 99-2181 (La.2/29/00), 755 So.2d 226, 234. The purpose of a Daubert hearing is to determine the reliability of an expert’s methodology, not whether the expert has the proper qualifications to testify. Cheairs v. State ex rel. Dep’t of Transp. & Dev., 2003-0680 (La.12/3/03), 861 So.2d 536, 541. See State v. Vidrine, 2008-1059 (La.App. 3rd Cir.4/29/09), 9 So.3d 1095, 1106-07, writ denied, 2009-1179 (La.2/26/10), 28 So.3d 268.

The defendant filed a motion in limine arguing that evidence of his field sobriety tests must be evaluated under the Daubert standard, which would require a pretrial Daubert hearing. At the motion in limine hearing, the defendant argued that the testimony of a police officer (or officers) who conducted the standardized field sobriety tests — walk-and-turn, one-leg stand, and the horizontal gaze nystagmus (HGN) — must first be presented to the court in a Daubert hearing to determine whether or not such tests are scientifically valid. The defendant asserted at the hearing that an officer’s observations and conclusions at trial of intoxication based on poorly performed field sobriety tests is not lay testimony. The defendant also cited to United States v. Horn, 185 F.Supp.2d 530, 560-61 (U.S.D.C.Md.2002), a ten-year-old federal case out of Maryland, which found that, while the arresting officer could give lay opinion testimony that the defendant was driving while intoxicated,

[the officer] may not use language such as “test,” “standardized clues” or express the opinion that Horn “passed” or “failed,” because the government has not shown, under Rule 702 and the Daubert/Kumho Tire [Co., Ltd. v. Carmichael, 526 U.S. 137, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999) ] decisions, that these conclusions are based Lon sufficient facts or data and are derived from reliable methods or principles.

In a written order denying the defendant’s motion in limine, the court provided, in pertinent part:

[T]he following facts guide the court. A fatal accident occurred shortly before 3 o’clock a.m. on July 22, 2007, at the intersection of Louisiana Highway 24 South and Louisiana Highway 3080 in Terrebonne Parish. One driver died on the scene. The other was the defendant, John Timothy Waldrop. Trooper Corey Pennison arrived on the scene at or about 3 o’clock a.m. and conducted a crash investigation. When he approached the defendant, Trooper Penni-son detected a strong odor of alcohol. He also noticed the defendant’s swayed balance, slurred speech, and bloodshot/watery eyes. Trooper Pennison administered the horizontal gaze nystag-mus test; Mr. Waldrop performed poorly. Trooper Pennison testified that he advised the defendant of his Miranda rights; that Mr. Waldrop understood these rights; and that he voluntarily waived those rights. Trooper Treone Larvadain handcuffed the defendant and transported him to Troop C. Trooper Larvadain testified that she advised Mr. Waldrop of his Miranda rights in the vehicle and at the station; that he understood these rights; and that he voluntarily signed a waiver of rights form. Trooper Larvadain administered a chemical breath test to Mr. Waldrop using the Intoxilyzer 5000. A result of .126g% was reported. She also administered the walk and turn test and one-legged stand. Mr. Waldrop performed poorly. He was then transported to Terrebonne Parish Criminal Justice Complex and booked.
Motion In Limine Regarding Field So-brietg Testing
The defendant urges the Court to adopt a new test for gauging the admissibility for nonchemical field sobriety testing, including but not limited to the horizontal gaze nystagmus test[.] The Court declines to do so. While other courts may apply the rigors of Dau-bert/Foret to nonchemical field sobriety testing, the Court has located no Louisiana authority mandating that it do so. It has been Louisiana law that psycho-motor aspects of the field sobriety testing are admissible without expert testimony or interpretation because they consist of objective components that are commonly understood. They are in the “same category as other commonly understood signs of impairment such as glassy or blood-shot eyes, slurred speech, staggering, flushed face, labile emotions, [and the] odor of alcohol.” State v. Meador, 674 So.2d at 832 [sic]. Thus, an officer is permitted to testify as to his observations of the psychomotor portion of test. In Louisiana, HGN test results are admissible without expert testimony so long as the proper foundation has been shown both as to the administering | ^officer's training and ability to administer the test and as to the actual technique used by the officer in administering the test. See, e.g., State v. Armstrong, 561 So.2d 883 [(La.App. 2nd Cir.), writ denied, 568 So.2d 1077 (La.1990) ].

We agree with the court’s ruling. It has been widely recognized that intoxication, with its behavioral manifestations, is an observable condition about which a witness may testify. State v. Allen, 440 So.2d 1330, 1334 (La.1983). Behavioral manifestations in the absence of a scientific test are determined on a case by case basis. An officer’s subjective opinion that a subject failed a field sobriety test may constitute sufficient evidence of intoxication. See State v. Kestle, 2007-1573 (La.12/2/08), 996 So.2d 275, 279. Results of the HGN test are admissible as evidence of intoxication provided a proper foundation is laid. The proper foundation for admitting the test has been laid when a showing has been made that the officer who administered the test was trained in the procedure, was certified in its administration and that the procedure was properly administered. See State v. Breitung, 623 So.2d 23, 25 (La.App. 1st Cir.), writ denied, 626 So.2d 1168 (La.1993). A law officer may testify as to matters within his personal knowledge acquired through experience without first being qualified as an expert. Kestle, 996 So.2d at 280.

At the preliminary examination hearing (conducted five months prior to the motion in limine hearing), Louisiana State Trooper Corey Pennison testified that he conducted the HGN test on the defendant at the accident site. According to Trooper Pennison, he was trained and certified in administering standardized field sobriety tests. Louisiana State Trooper Treon Larvadain testified at the preliminary examination hearing that she drove the defendant from the accident site to Troop C. At Troop C, she conducted the other two standardized tests on the defendant, namely the 17walk-and-turn and the one-leg stand. According to Trooper Larvadain, she had training in the detection and apprehension of impaired drivers. Previously, she worked for the Lafourche Parish Sheriffs Office where she had taken a post-academy field sobriety course. Further, at the State Police Academy she took a forty-hour course in field sobriety training.

Thus, while the officers were trained and certified in the proper administration of the field sobriety tests, such tests do not have objective grading criteria which must be followed by the officers using them. Rather they are guidelines which are helpful in forming an officer’s subjective opinion. State v. Garris, 603 So.2d 277, 282 (La.App. 2nd Cir.), writ denied, 607 So.2d 564 (La.1992). Had Troopers Pennison and Larvadain testified at trial, their subjective opinions in determining whether the defendant had passed the objective tests would have constituted non-expert testimony. See Garris, 603 So.2d at 282. Accordingly, no Daubert hearing was required. This assignment of error is without merit.

ASSIGNMENT OF ERROR NO. 2

In his second assignment of error, the defendant argues that the trial court erred in denying his motion to suppress statements. Specifically, the defendant contends that the State failed to establish that he understood his Miranda rights or that he was given his Miranda rights.

When a court denies a motion to suppress, factual and credibility determinations should not be reversed in the absence of a clear abuse of the court’s discretion, i.e., unless such ruling is not supported by the evidence. See State v. Green, 94-0887 (La.5/22/95), 655 So.2d 272, 280-81. However, a court’s legal findings are subject to a de novo standard of review. See State v. Hunt, 2009-1589 (La.12/1/09), 25 So.3d 746, 751.

IsWe note initially that it is unclear what statement or statements the defendant sought to suppress. Our review of the record indicates the defendant’s only statement was to Trooper Pennison at the site of the accident wherein he said he was driving and passed through a green light when he hit the other vehicle. Accordingly, it is not clear why the defendant filed a motion to suppress what appears, by all accounts, to be an exculpatory statement. In any event, before a confession may be introduced into evidence, the State must establish that the accused was advised of his constitutional rights under Article I, § 13 of the Louisiana Constitution and the Supreme Court’s decision in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). In State v. Brown, 384 So.2d 425, 426-27 (La.1980), the Louisiana Supreme Court stated:

When a statement made during custodial interrogation is sought to be introduced into evidence the state bears a heavy burden to show that the defendant knowingly and intelligently waived his right against self-incrimination and the right to counsel. Miranda[.] In North Carolina v. Butler, 441 U.S. 369, 99 S.Ct. 1755, 60 L.Ed.2d 286 (1979), the United States Supreme Court reiterated that the state’s burden is great and that the courts must presume that a defendant did not waive his rights. However, in Butler the Court also held that the waiver of Miranda rights need not be explicit but may be inferred from the circumstances surrounding the statement — the words and actions of the person interrogated:
An express written or oral statement of waiver of the right to remain silent or of the right to counsel is usually strong proof of the validity of that waiver, but is not inevitably either necessary or sufficient to establish waiver. The question is not one of form, but rather whether the defendant in fact knowingly and voluntarily waived the rights delineated in the Miranda case. As was unequivocally said in Miranda, mere silence is not enough. That does not mean that the defendant’s silence, coupled with an understanding of his rights and a course of conduct indicating waiver, may never support a conclusion that a defendant has waived his rights. The courts must presume that a defendant did not waive his rights; the prosecution’s burden is great; but in at least some |9cases waiver can be clearly inferred from the actions and words of the person interrogated. 99 S.Ct. at 1757.

In Moran v. Burbine, 475 U.S. 412, 421, 106 S.Ct. 1135, 1140-41, 89 L.Ed.2d 410 (1986), the United States Supreme Court stated:

Miranda holds that “[t]he defendant may waive effectuation” of the rights conveyed in the warnings “provided the waiver is made voluntarily, knowingly and intelligently.” The inquiry has two distinct dimensions. First, the relinquishment of the right must have been voluntary in the sense that it was the product of a free and deliberate choice rather than intimidation, coercion, or deception. Second, the waiver must have been made with a full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it. Only if the “totality of the circumstances surrounding the interrogation” reveal both an uncoerced choice and the requisite level of comprehension may a court properly conclude that the Miranda rights have been waived, (citations omitted).

In his brief, the defendant asserts that Trooper Pennison’s testimony that he advised him of his rights at the scene of the accident was uncorroborated. Further, at Troop C, Trooper Larvadain read the defendant his rights, but did not ascertain if he understood those rights. The defendant testified that he did not recall being advised of his rights at any time.

In a written order denying the defendant’s motion to suppress statements, the court provided, in pertinent part:

Defendant urges the court to suppress certain statements he made to law enforcement officers at or near the accident scene because he was not properly Mirandized and did not knowingly and voluntarily waive his constitutional rights. Before an inculpatory statement, made during a custodial interrogation, may be introduced into evidence, the State must prove beyond a reasonable doubt that the Defendant was first advised of his Miranda rights and that the statement was made freely and voluntarily and not under the influence of fear, intimidation, menaces, threats, inducement or promises. La. R.S. 15:451; State v. Comeaux, 93-2729, p. 47 (La.7/1/97), 699 So.2d 16, 29, cert. denied, 522 U.S. 1150, 118 S.Ct. 1169, 140 L.Ed.2d 179 (1998); “Intoxication renders a statement involuntary only when the intoxication is of such a degree that it negates the defendant’s comprehension and renders him or her unconscious of the consequences of what he or she is saying.” State v. Narcisse, 462 [426] So.2d 118, 125-125 (La.1983), cert. denied 464 U.S. 865 [104 S.Ct. 202, 78 L.Ed.2d 176] (1983).
| ,nDuring the course of the motion hearings, the Court heard extensive testimony from Troopers Pennison and Larvadain. Both testified under oath that they separately advised the defendant of his Miranda rights, that the defendant understood his rights, and that the defendant voluntarily waives those rights. Although both officers indicated that there were visible signs of the defendant’s intoxication, neither testified that he was incoherent, responded inappropriately, or was “unconscious of the consequences of what he was saying.” Their testimony was untarnished by even a hint of coercion, duress or promises of leniency. Given the testimony, the Court finds that the defendant was informed of his constitutional rights at least twice, that he understood these rights, and that his statements to officers on May 17, 2005 were freely and voluntarily made.

We agree with the court’s ruling. At the hearing on the motion to suppress statements, Trooper Pennison testified that he approached the defendant at the accident scene where the defendant had just refused medical treatment from Aca-dian Ambulance personnel. Trooper Pen-nison read from a card the Miranda warnings to the defendant. Trooper Pennison then asked the defendant what happened. The defendant responded that he was traveling south on La. Hwy. 24, that he had a green light as he approached the intersection, and that he struck a car.

It is not clear from this portion of Trooper Pennison’s testimony whether, after being Mirandized, the defendant responded that he understood his rights. However, as the Butler Court noted, the waiver of Miranda rights need not be explicit but may be inferred from the circumstances surrounding the words and actions of the person being questioned. Butler, 441 U.S. at 373, 99 S.Ct. at 1757.

Despite the initial lack of evidence of an explicit waiver of Miranda rights by the defendant at the motion to suppress hearing, subsequent testimony at the hearing established such an explicit waiver by the defendant. For example, Trooper Larva-dain testified at the hearing that she | nalso Mirandized the defendant at the accident site. After reading the Miranda rights to the defendant from a card, Trooper Larva-dain stated, “When I was out by my unit I asked him if he understood his rights once I finished, and he said yes.” The defendant testified at the hearing that he did not recall Trooper Pennison advising him of his rights, and he further did not recall ever waiving his rights. Following the defendant’s testimony, Trooper Pennison was recalled to testify and the following direct and cross-examination took place:

Q. [by prosecutor]: Trooper Pennison, you heard the defendant’s testimony; is that correct?
A. That is correct.
Q. Is there any doubt in your mind whether or not you read this man his rights before he gave you the statement that he passed the green light and hit a car?
A. There’s no doubt.
Q. [by defense counsel]: After you read him his rights, what did he say?
A. The last question is do you understand your rights, and he said yes.
Q. Is that the last thing he said before he gave you his statement?
A. Yes.

There is no evidence in the record to suggest that the defendant was intimidated, coerced or deceived in any way which would have led him to waive his right to remain silent for any reason other than as a function of his free will. See State v. Robertson, 97-0177 (La.3/4/98), 712 So.2d 8, 30, cert. denied, 525 U.S. 882, 119 S.Ct. 190, 142 L.Ed.2d 155 (1998). The defendant had been adequately informed of his rights, understood those rights, and clearly waived his rights explicitly, as well as (where applicable) implicitly through his actions and words. See Brown, 384 So.2d at 427-28. Accordingly, we find no legal error or abuse of discretion by the trial court |12in denying the defendant’s motion to suppress. This assignment of error is without merit.

CONVICTION AND SENTENCE AFFIRMED.

HUGHES, J., concurs.


author: WILLIAMS, J. CARAWAY, J.,

text:
    SUCCESSION OF William Edinburg SMITH.
    No. 47,023-CA.
    Court of Appeal of Louisiana, Second Circuit.
    June 13, 2012.
    The Singleton Law Firm, by Christopher L. Sices, for Appellant, Everlena Lane.
    Sockrider, Bolin, Anglin & Batte, Shreveport, LA, by James E. Bolin, Jr., for Appellee, Jeffrey Levelle Smith.
    Before BROWN, WILLIAMS, GASKINS, CARAWAY and DREW, JJ.
   WILLIAMS, J.

IjThe plaintiff, Everlena Lane, appeals a judgment denying her petition to reopen the succession of William Smith for the sale of the succession’s ownership interest in immovable property. The trial court affirmed an August 2010 judgment of possession placing Jeffrey Smith in possession of that ownership interest. For the following reasons, we reverse and render.

FACTS

In July 2009, William Smith executed his will designating Everlena Lane as testamentary executrix. In the will, Smith devised and bequeathed “all of my monetary assets to my special friend, EVERLENA C. LANE, including but not limited to sales from any and all properties shared between my sister and I. I further give, devise and bequeath my IRA, Savings and Checking Account to my friend, EV-ERLENA C. LANE.” Smith also bequeathed all of his “personal belongings” to Everlena’s son, Richard Lane. The will did not contain a residuary clause. The decedent, Smith, died in October 2009.

Subsequently, Everlena Lane filed a petition to probate the decedent’s statutory will and the court issued an order probating the will. Everlena Lane filed a petition for possession naming Everlena and Richard Lane as decedent’s legatees and seeking possession of the property as provided in the will. The petition stated that one adult child, Jeffrey Smith, was born of decedent’s marriage, which had terminated by divorce. Attached to the petition was a detailed descriptive list of all movable and immovable property of the decedent. The movable property included vehicles, furniture, tools, appliances and funds from decedent’s checking, savings, 12money market and 401(k) accounts. The immovable property consisted of an undivided one-half interest in four tracts of land in Caddo Parish. The decedent’s sister owned the remaining interest in the land.

The district court rendered a judgment of possession placing Everlena Lane in possession of the money, stocks, annuities and bank accounts of decedent and placing Richard Lane in possession of decedent’s movable property. Pursuant to amended and second amended petitions for possession, the trial court rendered an amended judgment of possession providing corrected bank account numbers and a “2nd Amended Judgment of Possession” adding two utility trailers to the movable property placed in Richard Lane’s possession. None of the judgments placed Everlena Lane in possession of decedent’s interest in the immovable property.

In July 2010, Jeffrey Smith filed a petition seeking possession of the testator’s immovable property in Caddo Parish. In August 2010, the district court rendered a judgment of possession recognizing Jeffrey Smith as decedent’s only child and placing him in possession of all property not subject to testamentary disposition in the July 2009 will, including the decedent’s ownership interest in the immovable property described in the detailed descriptive list of succession property.

In October 2010, the plaintiff, Everlena Lane, filed a petition to reopen the Succession of William Smith, alleging that based upon the language in his will, the decedent had intended that his interest in the immovable property be sold and the proceeds given to the plaintiff. Alternatively, plaintiff alleged that the testator intended for her to receive |3his ownership interest in the land. In support of the petition, the plaintiff attached the affidavit of decedent’s attorney, Lori Graham, who stated that the decedent’s desire was to have the immovable property sold and the proceeds given to plaintiff. Jeffrey Smith filed a motion for summary judgment, which was denied by the trial court.

After a hearing, the trial court found, in effect, that the testator’s bequest of assets to the plaintiff did not include the decedent’s interest in the immovable property. The court concluded that in the absence of a residual clause, the decedent’s ownership interest in the land passed to his heir, Jeffrey Smith. The court rendered judgment dismissing plaintiffs claims and affirming the August 2010 judgment of possession in favor of Smith. Plaintiff appeals the judgment.

DISCUSSION

The plaintiff contends the trial court erred in denying her petition to reopen the succession. Plaintiff argues that the evidence showed that the decedent’s intent in writing the will was to bequeath his interest in the immovable property to her.

The testator’s intent controls the interpretation of his testament. LSA-C.C. art. 1611. Courts must seek to give meaning to all testamentary language in a will and avoid any interpretation that would render the language meaningless. LSA-C.C. art. 1612; Succession of Tyson, 30, 703 (La.App.2d Cir.6/26/98), 716 So.2d 148; Succession of Meeks, 609 So.2d 1035 (La.App.2d Cir.1992). The first and natural impression conveyed to the mind on reading the will as a whole is entitled to great weight. Meelcs,Jjsupra. In the absence of valid testamentary disposition, the un-disposed property of the deceased devolves by operation of law to his descendants by blood or adoption. LSA-C.C. art. 880.

Initially, we must consider the testamentary , language, which provides in pertinent part:

I give, devise and bequeath all of my monetary assets to my special friend, EVERLENA C. LANE, including but not limited to sales from any and all properties shared between my sister and I. I further give, devise and bequeath my IRA, Savings and Checking Accounts to my friend, EVERLENA C. LANE.

The appellee focuses on the term “monetary assets,” while ignoring the testator’s language stating that the bequest includes his interest in “any and all properties shared” with his sister, not limited to sales of such property. The record shows that the testator shared an undivided one-half ownership interest with his sister in four tracts of land described in the detailed descriptive list of property. The testator’s reference to this immovable property in his bequest of assets to Everlena Lane indicates the testator’s intent that the plaintiff receive the benefit of his ownership interest in the land.

Thus, contrary to the appellee’s assertion in his brief, the.testator’s bequest to plaintiff did provide for disposition of his ownership interest in the immovable property. Although the wording is somewhat awkward, the first impression conveyed upon reading the clause at issue is that the testator intended to give the plaintiff his interest in the immovable property. To find otherwise would render meaningless the testamentary language referencing the testator’s interest in the Caddo Parish land in his bequest to plaintiff. | ^Because the will contained a valid testamentary disposition of the testator’s interest in the immovable property, Article 880 is not applicable.

In the absence of a contrary expression, the law presumes that when a will is executed the testator intends to dispose of his entire estate. Carter v. Succession of Carter, 332 So.2d 439 (La.1976); Succession of Kearl, 440 So.2d 179 (La.App. 4th Cir.1983). In this case, the lack of a residuary clause in the will supports the presumption that the testator intended to dispose of all of his property, including his ownership interest in the Caddo land, through the bequests stated in his will. It would require a strained interpretation of the will provisions to believe that the testator did not intend to give his interest in the co-owned immovable property to plaintiff, despite his express reference to that land in his bequest to her.

Based upon our consideration of the testament as a whole, we must conclude that the trial court erred in finding that the testamentary bequest to plaintiff did not validly dispose of the testator’s ownership interest in the immovable property. Thus, that property interest shall pass not to the testator’s heir, Jeffrey Smith, but to the plaintiff. Consequently, we shall reverse the trial court’s judgment and render judgment sending the plaintiff into possession of the testator’s undivided one-half interest in the immovable property described in the detailed descriptive list.

CONCLUSION

For the foregoing reasons, the trial court’s judgment is reversed and it is hereby ORDERED that EVERLENA LANE is recognized as legatee of the deceased, WILLIAM EDINBURG SMITH, and as such is recognized as |fiowner and sent into possession of all of the deceased’s right, title and interest in and to the immovable property described below:

1.A tract of land located in Section 7, Township 16 North, Range 15 West, Cad-do Parish, Louisiana, more fully described as follows: Begin at the Southeast corner of said Section 7, thence run due North along the West right-of-way line of the Simpson Road a distance of 2,049 feet for a point of beginning; thence run West 925.65 feet, thence run North 100 feet, thence run East 925.65 feet, thence run South along the West right-of-way line of the Simpson Road 100 feet to the point of beginning, said tract of land being located in Lot “C” of the Lewis-Washington Partition, and containing two and one-eight acres, more or less, known as 9304 Simpson Road and 9306 Simpson Road, Shreveport, Louisiana.

2. 19.85 ACRES M/L OF LEWIS-WASHINGTON PARTITION IN E/2 OF SEC. 7(16-15) N. 608.25 ft of Lot “C,” less N. 100 ft of W. 841.2 ft of E. 871.2 ft & less N. 200 ft of S. 400 ft of W. 895.65 ft of E. 925.65 ft and less S. 100 ft of W. 841.2 ft of E. 871.2 ft and less N. 100 ft of S. 200 ft of W. 840 ft of E. 870 ft thereof, located in Caddo Parish, Louisiana.

3. 7.385 ACRES M/L OF LEWIS-WASHINGTON PARTITION IN E/2 OF Sec. 7 (16-15), S. 500 ft of Lot “C,” located in Caddo Parish, Louisiana.

4. 2.06 ACRES M/L OF LEWIS-WASHINGTON PARTITION IN E/2 OF SEC. 7 (16-15), N. 100 ft of S. 400 ft of 895.65 ft, of E. 925.65 ft of Lot “C,” located in Caddo Parish, Louisiana.

Costs of this appeal are assessed to the appellee, Jeffrey Smith.

REVERSED AND RENDERED.

CARAWAY, J., dissents with written reasons.

CARAWAY, J.,

dissenting.

|,The testament of Mr. Smith contains only two particular legacies and no universal legacy addressing the balance of his estate. Such a will is completely permissible. Courts need not strain to construe the will to dispose of all of the decedent’s property since our law supplements for the balance.

Mr. Smith’s first legacy addresses the decedent’s “personal belongings,” including “any car, truck, furniture and equip-merit.” Thus, this particular legacy addresses the decedent’s corporeal movables.

The second legacy provides as follows:

I give, devise and bequeath all of my monetary assets to my special friend, EVERLENA C. LANE, including but not limited to sales from any and all properties shared between my sister and I. I further give, devise and bequeath my IRA, Savings and Checking Accounts to my friend, EVERLENA C. LANE.

This legacy, the focus of this suit, lists the decedent’s broad concern for the disposition of “monetary assets” or incorporeal movables, “including ... sales from any and all properties shared between my sister and I.”

There is no particular legacy specifically addressing Mr. Smith’s ownership of immovable property. Nevertheless, according to the majority, the decedent’s co-owned family immovables were included in the disputed legacy of his “monetary assets.” This assessment is somehow made from only a reading of the language of the will, since the trier-of-fact found no competent extrinsic evidence of such intent.

|2The Civil Code’s rules for the interpretation of legacies are provided in Articles 1611 through 1616. La. C.C. arts. 1611, et seq. Article 1611(A) first states as follows:

A. The intent of the testator controls the interpretation of his testament. If the language of the testament is clear, its letter is not to be disregarded under the pretext of pursuing its spirit. The following rules for interpretation apply only when the testator’s intent cannot be ascertained from the language of the testament. In applying these rules, the court may be aided by any competent evidence.

La. C.C. art. 1611.

In the articles following this initial directive of Article 1611, the codal provisions and official comments (La.C.C.arts. 1612-1616) identify only a few correctable instances of the lack of clarity in a testator’s disposition. In contrast, in settings other than legacy interpretation, the Civil Code’s provisions for the resolution of ambiguity in legislation or in contract are premised upon the determination of unclear and disputed language “susceptible of different meanings.” La. C.C. arts. 10 and 2048. Yet, the rules for interpretation of legacies do not state a general rule that any ambiguous legacy with a disposition “susceptible of different meanings” allows the court to choose or discern the mind of the decedent. This absence of such general rule authorizing the court to select between two reasonable dispositions from testamentary language “susceptible of different meanings” is recognition of the default principle for a testament set forth in Civil Code Article 880. “In the absence of valid testamentary disposition, the undisposed property of the deceased devolves by operation of law.” La. C.C. art. 880. In recognition of this codal scheme, the guide from the jurisprudence is that “extrinsic evidence may be used on a limited |3basis to determine what the testator’s words mean but not to rewrite the will.” Succession of Burguieres, 612 So.2d 864 (La.App. 5th Cir.1993), writ denied, 614 So.2d 1256 (La.1993).

Thus, from these Civil Code principles, the first question for resolution of this disputed legacy is: How unclear is Mr. Smith’s language? And second, does a specific codal rule for legacy interpretation from Articles 1612-1616 apply, mandating one disposition?

I believe that Mr. Smith’s legacy to Ev-erlena Lane is fatally unclear regarding any intent for a disposition of immovable property. At the time of the will, his sister who is referenced in the legacy had recently died and there was family dispute over her estate. The language of the will was apparently the product of the testator alone and not an attorney. It reasonably reveals the intent that “sales” proceeds, that might result before Mr. Smith’s death “from” the sale of his co-owned immov-ables, be included within his legacy of “monetary assets” to Ms. Lane. As Civil Code Article 1614 and its revision comments demonstrate, the testator’s consideration in the will of the assets he owns at the time of his execution of the will and the assets he might own at the time of his death can cause interpretive issues. Here, that type of issue is reflected in Mr. Smith’s expressed contemplation of his possible sales of the co-owned family im-movables and his desire that “sales” proceeds be included in the legacy to Ms. Lane. While it is unclear if Mr. Smith was focused on “sales” he might make before his death or “sales” thereafter, the immovable properties were clearly to be liquidated and the proceeds fall into his legacy of “monetary assets.”

|40n the other hand, it is very much in doubt that Mr. Smith even contemplated the other contingency that some or all of his immovable properties would remain in his and the family’s co-ownership at his death and be inherited by Ms. Lane as an immovable. If Mr. Smith did contemplate his retention of the tracts until his death, it is reasonable that Mr. Smith’s desire was that the continued co-ownership of the im-movables would be left for his intestate heir and sister’s heirs to resolve.

With this wide and unclear array of possibilities for a particular legacy dealing generally with “monetary assets,” Articles 1612-1616 do not specifically provide a rule mandating one interpretation over another. Article 1612 charges that the “disposition be interpreted in a sense in which it can have effect, rather than” no effect. However, in its context this disposition was to transfer “monetary assets” and effectively operated for such assets existing at death even though the legacy’s condition of the “sales” of the immovables may never have occurred. The other specific codal rules likewise have no application. Therefore, this court is not authorized by the Civil Code’s interpretive provisions to rewrite the disposition as a particular legacy of immovables.

In summary, while the legacy clearly contemplated “sales” of immovables before the testator’s death and a disposition of proceeds “from” those sales, it does not address the possibility of an immovable remaining in Mr. Smith’s estate at death. Therefore, with no operative and valid testamentary disposition of his co-owned family property, the immovable property devolves by operation of law.