author: WALTER J. ROTHSCHILD, Judge.

text:
    STATE of Louisiana v. Freddie BANKS.
    No. 11-KA-961.
    Court of Appeal of Louisiana, Fifth Circuit.
    May 22, 2012.
    Rehearing Denied Aug. 6, 2012.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Thomas J. Butler, Jeffery Lagarde, Assistant District Attorneys, Gretna, LA, for Plaintiff/Appellee.
    Juan C. Labadie, Attorney at Law, Gret-na, LA, for Defendant/Appellant.
    Panel composed of Judges SUSAN M. CHEHARDY, WALTER J. ROTHSCHILD, and ROBERT A. CHAISSON.
   WALTER J. ROTHSCHILD, Judge.

|2Pefendant, Freddie Banks, was charged by bill of information with possession of a firearm by a convicted felon in violation of LSA-R.S. 14:95.1 (Count 1) and possession of heroin between 200 and 400 grams in violation of LSA-R.S. 40:966 C (Count 2). At his arraignment on September 21, 2009, he pled not guilty and subsequently filed a motion to suppress the evidence. The trial court denied the motion on May 12, 2011, and defendant filed a writ application -with this Court from this ruling. This Court refused to exercise its supervisory jurisdiction and found that defendant could re-urge this issue on appeal in the event of a conviction. State v. Banks, ll-K-601 (La.App. 5 Cir. 6/17/11) (unpublished writ disposition).

Thereafter, defendant withdrew his not guilty pleas and pled guilty as charged under State v. Crosby, 338 So.2d 584 (La.1976), reserving his right to ^appeal the trial judge’s denial of his motions to suppress. The trial judge sentenced defendant on Count 1 to imprisonment at hard labor for 15 years without benefit of parole, probation, or suspension of sentence, and on Count 2 to imprisonment at hard labor for 15 years. Defendant now appeals on the basis of two assignments of error relating to the ruling on his motion to suppress.

The following facts were elicited at the suppression hearings held on April 7, 2010, and April 6 and 28, 2011:

Detective William Roniger of the Jefferson Parish Sheriffs Office (JPSO) received a tip from a confidential informant that a tall black male in his thirties was selling heroin from his residence at 3251 Wall Boulevard, Apartment # 3405, at the Calypso Bay apartment complex in Harvey. The confidential informant told Detective Roniger he had firsthand knowledge of this information. Additionally, the confidential informant, an individual with whom Detective Roniger was personally acquainted, had previously proven to be reliable and credible, and his information had led to more than 20 arrests and several convictions.

On August 5, 2009, Detective Roniger set up surveillance of that location in an attempt to corroborate the confidential informant’s tip. During that surveillance, at approximately 6:00 p.m., co-defendant, Ronald Kinsey, arrived at the apartment, where he engaged in suspicious behavior before going inside. Mr. Kinsey remained in his car for an extended period of time while parked in front of the residence, continually looking over both shoulders as if he was attempting to spot surveillance by the police. He subsequently went inside the apartment where he stayed a very short amount of time, and then left. Mr. Kinsey also circled his vehicle either before he entered or after he exited the apartment.

14After Mr. Kinsey got into his vehicle and left, officers followed him and conducted a traffic stop, because Mr. Kinsey was speeding and not wearing a seat belt. Detective Roniger questioned Mr. Kinsey at a Discount Zone gas station/convenience store at the corner of Lapalco and Wall Boulevard, the location of the stop. He thought that the apartment complex in question was in close proximity to that corner. Detective Roniger ultimately found 64 grams of heroin in Mr. Kinsey’s possession.

After Mr. Kinsey was arrested, Detective Zeagler reestablished surveillance of the residence in question. A short time later, he observed a tall black male in his mid-thirties arrive at the residence and enter it. Members of Detective Roniger’s narcotics group entered the residence to secure it prior to obtaining a search warrant, because they feared that someone would contact the occupants of the apartment and advise them of Mr. Kinsey’s arrest; however, the officers did not search the apartment at that time.

Detective Roniger applied for and obtained a search warrant for defendant’s residence. During the execution of the search warrant, Detective Roniger found approximately 220 grams of heroin and paraphernalia associated with distribution of heroin, including a syringe, three burnt spoons, a large digital scale, and two 200-gram weights in a black gym bag in the kitchen; a loaded Taurus .357 handgun in a chest of drawers in the master bedroom; approximately $315,000.00 in cash in the air conditioning vent in the hallway; four working cell phones; two ledgers; a picture of defendant, three boxes of clear plastic bags; and numerous bottles of “Manita” and a bottle of Inositol. Detective Roniger advised defendant of his rights, and defendant indicated he understood them. Afterward, defendant gave a taped statement to the detective.

| r,Ronald Kinsey testified at the suppression hearing that on August 5, 2009, he arrived at 3251 Wall Boulevard, Apartment # 3405, at some time in the evening, where he stayed approximately an hour to an hour-and-a-half. He further testified that he used his key to get in, and that no one else was in the apartment. Mr. Kinsey explained that he left the apartment, after which the police stopped him in his vehicle by the Discount Zone and questioned him for approximately an hour. He asserted that he could not see the apartment complex in question from the Discount Zone. He also asserted that he had not seen defendant that day.

After hearing the testimony at the suppression hearings, the trial judge said he would take the matter under advisement. The trial judge subsequently denied the motions to suppress in a written order, giving lengthy reasons for judgment.

In that order, the trial judge found that both probable cause and exigent circumstances existed to satisfy the criteria set forth in Kirk v. Louisiana, 536 U.S. 635, 122 S.Ct. 2458, 153 L.Ed.2d 599 (2002) to justify the JPSO’s warrantless entry into the apartment. The trial judge further found that based on a totality of circumstances, there was a substantial basis upon which to find probable cause to issue the search warrant. He noted that the probable cause was based on the informant’s tip, showing firsthand knowledge of criminal activity at the address, independently established by surveillance of the address, including Mr. Kinsey’s suspicious actions and his circling, arrival and quick departure as well as his later arrest with a large quantity of heroin in his possession.

The trial judge further found that based on Detective Roniger’s testimony that defendant arrived back at the apartment shortly after Mr. Kinsey was detained by the police, the police had a reasonable belief that evidence would be destroyed, Rand that the police were justified in making a warrantless entry to secure the apartment until a warrant could be obtained.

By this appeal, defendant argues that the trial judge erred by denying his motion to suppress the evidence. He contends that the application for the search warrant did not set forth sufficient facts to establish probable cause. Defendant notes that the search warrant did not state how the confidential informant learned the information that he supplied to the police. He further notes that the police saw only one person enter and exit the residence which did not indicate a pattern, there was no controlled buy, and the informant did not provide a specific description of the suspect or the suspect’s name. The State responds that based on the totality of the circumstances and a common sense reading of the affidavit, the magistrate’s assessment of the supporting affidavit was reasonable, as he had a substantial basis for concluding that probable cause existed for the issuance of the search warrant.

The Fourth Amendment to the United States Constitution and Article 1, § 5 of the Louisiana Constitution prohibit unreasonable searches and seizures. State v. Thomas, 08-390, p. 6 (La.App. 5 Cir. 1/27/09), 8 So.3d 80, 83, writ denied, 09-0626 (La.11/25/09), 22 So.3d 170. If evidence is derived from an unreasonable search or seizure, the proper remedy is to exclude the evidence from trial. Id. A defendant who is adversely affected may move to suppress any evidence from use at the trial on the merits on the ground that it was unconstitutionally obtained. LSA-C.Cr.P. art. 703 A.

As a general rule, searches and seizures must be conducted pursuant to a validly executed search warrant or arrest warrant. State v. Holmes, 08-719, p. 6 (La.App. 5 Cir. 3/10/09), 10 So.3d 274, 278, writ denied, 00-0816 (La.1/8/10), 24 So.3d 857. A search warrant may be issued only upon probable cause to establish to the satisfaction of a magistrate, by the affidavit of a credible person, particularly | describing the person or place to be searched and the things to be seized. State v. Lee, 05-2098, p. 14 (La.1/16/08), 976 So.2d 109, 122, cert. denied, 555 U.S. 824, 129 S.Ct. 143, 172 L.Ed.2d 39 (2008) (citing LSA-Const. art. 1, § 5; LSA-C.Cr.P. art. 162); State v. Johnson, OS-265, pp. 4-5 (La.App. 5 Cir. 8/19/08), 994 So.2d 595, 598. Probable cause for the issuance of a search warrant “exists when the facts and circumstances within the affi-ant’s knowledge and of which he has reasonably trustworthy information, are sufficient to support a reasonable belief that an offense has been committed and that evidence or contraband may be found at the place to be searched.” Lee, 05-2098 at 14, 976 So.2d at 122. An affidavit supporting a search warrant is presumed to be valid and the defendant has the burden of proving that the representations made in the affidavit are false. Johnson, 08-265 at 5, 994 So.2d at 599.

The determination of probable cause does not rest on an officer’s subjective beliefs or attitudes, but turns on a completely objective evaluation of all the circumstances known to the officer at the time of his challenged action. Lee, 05-2098 at 14, 976 So.2d at 122. A search warrant must establish a probable continuing nexus between the place sought to be searched and the property sought to be seized. State v. Casey, 99-0023, p. 4 (La.1/26/00), 775 So.2d 1022, 1028, cert. denied, 531 U.S. 840, 121 S.Ct. 104, 148 L.Ed.2d 62 (2000).

The task for a reviewing court is simply to ensure that under the totality of the circumstances the magistrate had a “substantial basis” for concluding that probable cause existed. Lee, 05-2098 at 14, 976 So.2d at 122 (citing Illinois v. Gates, 462 U.S. 213, 236, 103 S.Ct. 2317, 2331, 76 L.Ed.2d 527 (1983)). Within its four corners, an affidavit must contain the facts establishing the existence of probable cause for issuing the warrant. Casey, supra. Moreover, if the magistrate finds the affidavit sufficiently detailed and reliable to show probable cause, the reviewing 1 scourt should interpret the affidavit in a realistic and common sense fashion, being aware that it is normally prepared by non-lawyer police officers in the midst and haste of a criminal investigation. State v. Green, 02-1022, p. 8 (La.12/4/02), 831 So.2d 962, 969. Within these guidelines, courts should strive to uphold warrants to encourage their use by police officers. Id.

In establishing that an informant’s tip is sufficient to provide a basis for a finding of probable cause, the affiant should include statements about the informant’s reliability and about the manner in which the informant obtained the information. State v. Dee, 09-712, p. 10 (La.App. 5 Cir. 2/23/10), 34 So.3d 892, 899, writ denied, 10-705 (La.10/29/10), 48 So.3d 1097. Nevertheless, there are no specific tests to be satisfied by an informant’s tip, and the magistrate may issue the warrant when the totality of the circumstances, viewed in a common sense and non-technical manner, establishes there is a fair possibility that contraband or evidence of a crime will be found in a particular place. Id. at 10-11, 34 So.2d at 899 (citing State v. Barrilleaux, 620 So.2d 1317, 1320 (La.1993)).

When evidence is seized pursuant to a search warrant, the defendant bears the burden of proof at a hearing on his motion to suppress that evidence. See LSA-C.Cr.P. art. 703 D; Johnson, 08-265 at 5, 994 So.2d at 599. The trial court is afforded great discretion when ruling on a motion to suppress, and its ruling will not be disturbed absent an abuse of its discretion. Lee, 05-2098 at 15, 976 So.2d at 122; State v. Haywood, 00-1584, p. 5 (La.App. 5 Cir. 3/28/01), 783 So.2d 568, 574. “Marginal cases should be resolved in favor of a finding that the issuing magistrate’s judgment was reasonable.” State v. Rodrigue, 437 So.2d 830, 833 (La.1983).

In the instant case, the application for search warrant provided in pertinent part as follows:

|9In late July 2009, Lt. Daniel Jewell and Det. William Roniger, both assigned to the Narcotics Section of the Jefferson Parish Sheriffs Office, were contacted by a reliable and credible confidential informant in reference to heroin trafficking occurring on the West Bank area of Jefferson Parish. The confidential informant, who has provided information in the past leading to the seizure of narcotics and the arrests of narcotic traffickers, stated that a black male individual was distributing moderate quantities of heroin from a residence located at 3251 Wall Blvd apartment 3405 Harvey, Louisiana, the Calypso Bay apartment complex.
The confidential informant identified this individual as a tall black male in his 30’s. The confidential informant stated that this black male subject was housing a substantial quantity of heroin and the proceeds from the sale of heroin within the residence of 3251 Wall Blvd apartment 3405. This confidential informant obtained this information through firsthand knowledge of this subject’s illicit narcotics business.
On August 5, 2009, Lt. Jewell and Det. Roniger, along with assisting investigators of the Narcotics Section, established a surveillance of 3251 Wall Blvd apartment 3405. At approximately 6:09 p.m., Det. Kurt Zeagler observed a black male subject, identified as Ronald Kincey, ..., enter the residence. A short time later, Det. Zeagler observed Mr. Kincey exit the said residence, enter a 1999 Chevrolet Lumina ... and leave the apartment complex.
Lt. Jewell and Det. Roniger followed Mr. Kincey who was subsequently stopped by members of the Jefferson Parish Sheriffs Office Traffic Division. During the course of this stop, Mr. Kin-cey was found to be in possession of 64.3 grams of brown powder, which was field-tested positive for the presence of heroin. During an interview with Det. Roniger, Mr. Kincey repeatedly lied about coming from the Calypso Bay apartment complex, stating he had just left his place of employment[.]

Based on our review of the application, we find that the magistrate had a substantial basis for concluding probable cause existed for the issuance of the search warrant. Detective Roniger stated in the affidavit that a confidential informant had told him that he had firsthand knowledge that a tall black male in his thirties was distributing heroin from his residence, and that he was housing a substantial quantity of heroin and the proceeds from the sale of heroin within the residence. The detective also stated in the affidavit that the confidential informant | inwas reliable and credible and had provided information in the past leading to the seizure of narcotics and to the arrests of narcotics traffickers. The detectives set up surveillance of the residence, after which they observed an individual, later identified as Mr. Kinsey, enter the residence and exit shortly thereafter. Although Detective Roniger testified that that individual was acting suspiciously before he went inside the residence, in that he remained in his car for an extended period of time and continuously looked around, those facts were not contained in the affidavit.

The affidavit also reflected that once Mr. Kinsey was stopped for traffic violations, he was found to be in possession of 64.3 grams of heroin. Additionally, Mr. Kinsey repeatedly lied about coming from the Calypso Bay apartment complex, even though the detectives had just followed him from that location. Based on the foregoing facts contained in the affidavit, we find that probable cause for the issuance of the search warrant existed.

Defendant cites State v. McDonald, 503 So.2d 535 (La.App. 4 Cir.1987) in support of his contention that the trial judge erred by denying his motion to suppress. However, we find that McDonald is distinguishable as the affidavit in that case contained no allegation by the reliable informant that he knew from personal knowledge that drug selling was occurring at the residence. Conversely, in the instant case, the affidavit contained the allegation that the reliable confidential informant obtained information regarding the distribution of heroin through firsthand knowledge of the subject’s illicit narcotics business.

Further, even assuming that defendant is correct that the affidavit did not establish probable cause to support the issuance of a search warrant, suppression of the evidence seized pursuant to the warrant is not automatically required. In United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984), the |nSupreme Court created an exception to the exclusion of evidence where a law enforcement officer relies in good faith on a magistrate’s probable cause determination and the technical sufficiency of the warrant.

The Leon court enumerated four instances in which suppression remains an appropriate remedy: (1) where the magistrate or judge was misled by information the affiant knew was false or would have known was false except for a reckless disregard for the truth; (2) where the issuing magistrate wholly abandoned his detached and neutral judicial role; (3) where the warrant was based on an affidavit so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable; and (4) where the warrant is so facially deficient, i.e., fails to particularize the place to be searched or the things to be seized, that the executing officers cannot reasonably presume it to be valid. Leon, 468 U.S. at 923, 104 S.Ct. at 3421. None of these factors exist in the instant case, and therefore the evidence was properly not excluded.

Defendant next argues that the trial judge erred by denying his motion to suppress the evidence on the basis that no exigent circumstances existed to permit a warrantless entry into his home. The State responds that exigent circumstances existed to justify securing defendant’s residence. Alternatively, the State responds that even if there were no exigent circumstances, suppression of the evidence would not be required since the detective did not base his probable cause affidavit on anything found while securing the residence.

Officers may temporarily secure a dwelling to protect themselves and to prevent the removal or destruction of evidence to preserve the status quo while obtaining a search warrant. State v. Voltolina, 10-1090, p. 7 (La.App. 5 Cir. 10/25/11), 77 So.3d 1027, 1032 (citing State v. Flores, 10-960 (La.6/18/10), 37 So.3d 997, 998 (per curiam)). In the instant case, Detective Roniger testified that 112after Mr. Kinsey’s arrest, he was questioned by officers at the corner of Lapalco and Wall Boulevard, which he explained was a major thoroughfare in close proximity to the Calypso Bay apartment complex where defendant resided. As such, Detective Roniger was concerned that an unknown person passing by that intersection would contact the occupants of the residence who would, in turn, destroy any evidence within.

Detective Roniger further testified that after Mr. Kinsey was arrested, Detective Zeagler reestablished surveillance at defendant’s residence, and a short time later he observed a tall black male in his mid-thirties arrive at the residence and enter. As such, Detective Roniger thought that someone had already contacted defendant regarding Mr. Kinsey’s arrest. Detective Roniger testified that that was another factor in securing the residence while waiting for the search warrant to be signed. He also explained that the detectives did not begin to search the apartment until the search warrant was signed. In light of the foregoing, we find that the officers were entitled to temporarily secure defendant’s residence to prevent the removal or destruction of evidence while obtaining a search warrant.

Nevertheless, even if exigent circumstances did not exist, we find that suppression of the evidence is not required. In Flores, the supreme court found that even assuming police entry into the residence and initial security sweep of the premises occurred without exigent circumstances or consent, suppression of the evidence was not required since the police would have obtained a valid search warrant, “[b]ecause nothing the officers observed on the premises after their initial entry affected the decision to obtain a warrant, and because the probable cause basis for the warrant application derived not from their observations on the scene but from wholly independent sources, i.e., from a confidential informant and defendant.” State v. Voltolina, 10-1090 at 7, 77 So.3d at 1032 (quoting Flores, \usupra.). Thus, the supreme court explained that the police would have inevitably discovered the contraband in the residence by lawful means. Id.

Likewise, in the instant case, nothing the detectives observed during their securing of defendant’s apartment affected their decision to obtain a search warrant. Detective Roniger based his probable cause affidavit for the search warrant on information provided by the confidential informant and the finding of heroin on Mr. Kinsey shortly after he left defendant’s residence. Based on the foregoing, we find that the mere entry of the police into defendant’s residence without a search warrant did not require suppression of the evidence discovered during the subsequent execution of the search warrant.

The record was also reviewed for errors patent, according to LSA-C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975); and State v. Weiland, 556 So.2d 175 (La.App. 5 Cir.1990). The review reveals the following error:

The bill of information shows that defendant was charged with possession of heroin between 200 and 400 grams in violation of LSA-R.S. 40:966 C. The waiver of rights form also shows that defendant pled guilty to a violation of LSA-R.S. 40:966 C. However, the correct statutory citation for such a violation is LSA-R.S. 40:966 D(b).

The purpose of a bill of information is to inform a defendant of the nature and cause of the accusation against him as required by the Louisiana Constitution, Article 1, § 13. A clerical error in the statutory citation does not require a dismissal of the bill or reversal of a conviction if the error or omission does not mislead the defendant to his prejudice. LSA-C.Cr.P. art. 464; State v. Varnado, 01-867 (La.App. 5 Cir. 9/13/01), 798 So.2d 191, 194.

In the instant case, defendant was adequately informed of the essential facts of the offense charged and was not misled. Although the statutory citation is |14incorrect on the bill of information, it contains the proper description of the crime. Additionally, the proper description of the crime was also contained in the waiver of rights form. Lastly, the transcript reflects that at the beginning of the guilty plea colloquy, defense counsel advised the trial judge that defendant was pleading guilty to possession of heroin between 200 and 400 grams. Under these circumstances, we find that any error in the statutory citation is harmless.

After review of the record and all applicable law in this case, we fail to find merit in defendant’s argument that the trial court abused its discretion in denying his motion to suppress the evidence. For this reason, the conviction and sentence of defendant Freddie Banks are hereby affirmed.

AFFIRMED

      . It is noted that co-defendant, Ronald Kinsey, was charged in the same bill of information with possession of heroin between 28 and 200 grams in violation of LSA-R.S. 40:966 C (Count 3).

      . It is noted that this name is spelled as "Kincey” in the bill of information and in the affidavit in support of the search warrant, but "Kinsey” in the transcript during the testimony.

      . "[P]olice officers need either a warrant or probable cause plus exigent circumstances in order to make a lawful entry into a home.” Kirk v. Louisiana, 536 U.S. at 638, 122 S.Ct. at 2459.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Patricia L. CLOTWORTHY v. Michael J. SCAGLIONE and Progressive Security Insurance Company.
    No. 2011-CA-1733.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 23, 2012.

      Sean P. Early, Klotz & Early, New Orleans, LA, for Plaintiff/Appellant.
    Wm. Ryan Acomb, Michele Trowbridge Barreca, Porteous, Hainkel & Johnson, LLP, New Orleans, LA, for Defendant/Ap-pellee.
    (Court composed of Chief Judge CHARLES R. JONES, Judge DENNIS BAGNERIS, Judge EDWIN A. LOMBARD).
   PER CURIAM.

hThe plaintiff, Patricia Clotworthy, appeals the trial court judgment granting the exception of prescription filed by defendant, State Farm Mutual Automobile Insurance Company (State Farm). After review of the record in light of the applicable law and arguments of the parties, we affirm.

Relevant Facts and Procedural History

In October 2002, the plaintiff was the passenger in an automobile owned and operated by Luke Sporacio when it was involved in an accident with an automobile driven by Michael Scaglione. In October 2003, as a result of injuries suffered in the accident, the plaintiff filed suit against Mr. Scaglione and his insurance company, Progressive Security Insurance Company (Progressive). In April 2004, by supplemental and amending petition, the plaintiff added as defendants Mr. Sca-glione’s UM carrier, Allstate Insurance Company (Allstate), and her own UM carrier, State Farm. In July 2004, having compromised her claims against Mr. Sca-glione and Progressive, the plaintiff dismissed with prejudice her claims against | gthem. In September 2004, the plaintiff filed her Second Supplemental and Amended Petition, reiterating her earlier claims and asking for judgment against Mr. Scaglione, Progressive, Allstate, and State Farm. In December 2005, a motion and order dismissing State Farm without prejudice and reserving the right to proceed against Allstate was filed in the record. In February 2010, the plaintiff filed her Third Supplemental and Amended Petition, renaming State Farm as a defendant seeking, “after due proceedings are had,” judgment against State Farm “as prayed for in plaintiffs first supplemental and third amended petition for damages, and against Allstate Insurance Company. In March 2011, State Farm filed its peremptory exception of prescription, pointing out that the plaintiffs claims against State Farm prescribed on or before December 2, 2007, as the pending claim against Allstate (the primary UM insurer), does not interrupt prescription against State Farm (the personal excess UM insurer) because Allstate and State Farm (primary and personal excess UM insurers) are not solidary obli-gors.

On June 6, 2011, the trial court granted State Farm’s exception of prescription. In its reasons for judgment, the trial court found that the plaintiff failed to prove that she placed any conditions on dismissing State Farm or that State Farm had agreed to be brought back into the lawsuit in the future. The plaintiff filed a motion for a new trial which was denied on September 28, 2011. In his reasons for judgment, the trial judge noted as follows:

|3The crux of Ms. Clotworthy’s argument is that, in an offer of judgment letter, State Farm incorrectly stated that the Allstate insurance policy that would be available to her had policy limits of $1,100,00.00 [sic], and that she relied on that material misrepresentation in agreeing to dismiss State Farm from the lawsuit. In effect, Ms. Clotwor-thy would like to “rescind” her motion to dismiss State Farm because of error.
While the Court is sympathetic to Ms. Clotworthy’s predicament, the law does not provide her with any relief. Once she voluntarily dismissed State Farm, Civil Code article 3463 erased the interruption of prescription that occurred as a result of her filing suit. Ms. Clotwor-thy’s claims are now prescribed and will remain so, even in [sic] the Court were to grant her a new trial. Unfortunately, Louisiana law does not allow Ms. Clot-worthy to take back her dismissal because of her error. The Court finds no legal grounds for granting her a new trial and, accordingly, denies her motion.

On October 13, 2011, the trial court granted the plaintiffs timely motion for a devolutive appeal from the judgment of September 28, 2011.

Standard of Review and Applicable Law

We consider an appeal of the denial of a motion for new trial as an appeal of the judgment on the merits as well when, as here, it is clear from the appellant’s brief that he intended to appeal the merits of the case. See Smith v. Hartford Aca & Indem. Co., 254 La. 341, 223 So.2d 826, 828-29 (1969). When evidence is introduced and evaluated at the trial of a peremptory exception, an appellate court must review the entire record to determine whether the trial court manifestly erred with its factual conclusions. Davis v. Hibernia Nat. Bank, 98-1164 (La.App. 4 Cir.2/24/99), 732 So.2d 61, 63 (citation omitted); see also Katz v. Allstate Ins. Co., 04-1133, p. 2 (La.App. 4 Cir.2/2/05), 917 So.2d 443, 444 (factual conclusions of trial court reviewed under manifest error-clearly wrong standard).

The burden of proof is normally on the party pleading prescription but, if on the face of the petition it appears that prescription has run, the burden shifts to the |4plaintiff to prove a suspension or interruption of the prescriptive period. Younger v. Marshall Indus., 92-3134 (La.5/24/93), 618 So.2d 866, 869.

Discussion

The plaintiff argues on appeal that the trial court judgment granting State Farm’s Exception of Prescription should be reversed because “it is clear that the parties agreed to dismiss State Farm according to restricted conditions” so that State Farm could be renamed as a party defendant “if and when all other coverages were exhausted.” As evidence, the plaintiff submits to the fact that the dismissal was without prejudice and filed after the prescription date. In addition, the plaintiff points to a letter from Shirley Chiap-petta (State Farm’s counsel) dated June 22, 2005 (prior to the dismissal) that counsel submitted as an exhibit in support of his Motion for a New Trial, stating “I enclosed a Restricted Motion and Order to Dismiss without Prejudice.” (emphasis in plaintiffs pleading). This letter appears in the record on appeal as an exhibit in support of the plaintiffs Motion for a New Trial, stating as follows:

Allstate’s Insurance Company has $1,100,000 underinsured motorist insurance coverage primary to State Farm’s UM policy. Allstate’s UM coverage is sufficient to cover your client’s damages. I would appreciate you agreeing to dismiss State Farm without prejudice. I enclosed a Restricted Motion and Order to Dismiss without Prejudice.

Although the plaintiff does not submit the proposed motion and order that was apparently enclosed in the letter, the record before us does include (as an exhibit to Allstate’s Motion for Summary Judgment) a letter from the plaintiffs counsel to State Farm’s counsel, dated August 24, 2005, apparently in response to |sMs. Chiappet-ta’s letter of June 22, 2005, which states “Per your request, please find enclosed the Motion and Order for Partial Dismissal Without Prejudice, which my client has authorized me to sign, for the above referenced matter.”

Notably, the “Motion and Order for Partial Dismissal without Prejudice” signed by the trial judge in December 2005 was submitted to the court by the plaintiffs counsel and specifically states:

On motion of plaintiff, Patricia L. Clotworthy, appearing herein through undersigned counsel of record, who suggests to this Honorable Court that State Farm Mutual Automobile Insurance Company should be dismissed, without prejudice, from the above entitle and numbered cause of action, with all parties to bear their own costs, reserving the rights of plaintiff to proceed against the remaining defendant, Allstate Insurance Company.
IT IS ORDERED that State Farm Mutual Automobile Insurance Company, be dismissed, without prejudice, from the above-entitled and numbered cause of action, with all parties to bear their own costs, reserving the rights of plaintiff to proceed against the remaining defendant, Allstate Insurance Company.

Finally, State Farm submits an affidavit by Ms. Chiappetta wherein she declares that she never represented to the plaintiffs counsel that State Farm could be brought back into the lawsuit at any time or that, if and when the plaintiff exhausted all other coverage, the plaintiff could bring State Farm back into the lawsuit.

Accordingly, we agree with the trial court that the plaintiff has failed to prove that she placed any conditions on dismissing State Farm or that State Farm agreed to be brought back into this lawsuit. The plaintiffs counsel drafted the motion and order to dismiss State Farm from this lawsuit and the trial court signed the proposed order as submitted by counsel. Notably, there is no reservation in the 1 (¡motion and order. Clearly, an unqualified dismissal without prejudice does not constitute a reservation to reinstitute a prescribed lawsuit.

Conclusion

The trial court did not err in granting State Farm’s exception of prescription based on its finding that the plaintiff did not meet her burden in proving that prescription had been suspended or interrupted. Because the trial court did not err in granting State Farm’s exception, we pre-termit discussion of whether the trial court erred in denying the plaintiffs motion for a new trial.

The judgment of the trial court is affirmed.

AFFIRMED.

      . The plaintiff also dismissed claims against Judy Scaglione, although it does not appear from the record that Ms. Scaglione was ever named as a defendant.

      . Allstate and State Farm filed responses but no answer by Mr. Scaglione and Progressive, or explanation as to why judgment was sought against them when they had already been dismissed, appears in the record.

      .This appears as an exhibit to State Farm’s Exception of Prescription.

      . In April 2011, Allstate filed a motion for summary judgment which was granted resulting in Allstate’s dismissal with prejudice. That judgment was not appealed and is not an issue in this appeal.

      . Although State Farm’s Exception of Prescription and memorandum in support with attached exhibits appears in the designated record on appeal, there is no indication in the record before us that plaintiff's counsel filed an opposition to the exception. The only pleading in opposition to State Farm's exception that appears in the record before us is the plaintiff's Motion for New Trial and memorandum with attached exhibit filed on June 15, 2011. The single exhibit submitted in support of the Motion for New Trial is the June 22, 2005, letter from State’s Farm’s counsel that makes reference to an enclosed "Restricted Motion and Order to Dismiss without Prejudice.”

      . This document appears in the record as an exhibit to State Farm’s Exception of Prescription.


author: EDWIN A. LOMBARD, Judge.

text:
    STATE of Louisiana v. Henry GOLDEN.
    No. 2011-KA-0735.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 23, 2012.

      Leon A. Cannizzaro, Jr., District Attorney, Matthew Caplan, Assistant District Attorney, New Orleans, LA, for State of Louisiana.
    Cate L. Bartholomew, New Orleans, LA, for Defendant/Appellant.
    (Court composed of Chief Judge CHARLES R. JONES, Judge EDWIN A. LOMBARD, Judge PAUL A. BONIN).
   EDWIN A. LOMBARD, Judge.

h The defendant appeals his conviction for possession of cocaine, a violation of La.Rev.Stat. 40:967(0(2). After review of the record in light of the applicable law and arguments of the parties, we affirm his conviction and sentence.

Relevant Procedural History

Henry W. Golden was arrested for possession of cocaine in April 2007. He pleaded not guilty at his arraignment in July 2007. The trial court denied the defendant’s motions to exclude expert testimony and, alternatively, for a Daubert hearing in June 2010. The defendant’s motion to suppress was denied on November 5, 2010, and after a two day trial he was convicted by a six-person jury of possession of cocaine on November 18, 2010.

He appeals this conviction, arguing that the trial court erred in denying his motion to suppress, permitting introduction of impermissible other crimes evidence, denying his motion for a Daubert/Frye hearing as to the admissibility of the criminologist’s testimony concerning the test results of the substances ^contained in a tin container seized by the police at the time of his arrest, and in allowing the Orleans Parish District Attorney’s office to prosecute him after it recused itself in 2007.

Relevant Facts

The following evidence was adduced at the motion hearing and at trial. On April 23, 2007, Detective Chad Perez of the New Orleans Police Department (NOPD) received information from a reliable confidential informant (Cl) that the defendant was distributing cocaine in the City of New Orleans. The Cl told Detective Perez that shortly after 5 p.m. the defendant would leave his French Quarter pet supply business, located on Dumaine Street near Decatur Street, and drive to the 800 block of North Salcedo Street in his black Toyota FJ Cruiser to make a narcotics sale. Accordingly, Detective Perez conveyed this information (including the description of the defendant and the defendant’s vehicle) to Detective Frankie Watts, another member of the narcotics Special Operations group, directing him to establish a surveillance of the 800 block of North Salcedo Street.

While Detective Watts undertook surveillance of the 800 block of North Salcedo, Detective Perez and his partner, Detective Nathan Gex, waited nearby but out of sight. After Detective Watts reported suspicious actions taken by the defendant under surveillance, Detectives Perez and Gex drove towards the defendant who was standing beside his black SUV parked in front of 829 North Salcedo Street. Upon seeing the detectives, the defendant immediately twisted |osideways, holding the small tin can behind his leg and then discarding it into a small planter box in front of the fence at 829 North Salcedo Street. Accordingly, based on the information provided by Detective Watts and their own observations, Detectives Perez and Gex decided to detain Mr. Golden. They exited the police vehicle and, while Detective Perez detained the defendant, his partner retrieved a small tin Altoids can from the planter box. Detective Perez testified that the Altoids can, which was submitted into evidence, contained ten clear plastic bags each containing a white powered substance that, based upon his experience, he identified as cocaine. In addition, Detective Perez stated that, although he did not conduct the test himself, a field test on at least one of the ten bags inside of the Altoids can tested positive for cocaine and a K-9 search of the vehicle revealed six thousand dollars in U.S. currency in the center console of defendant’s vehicle. Finally, Detective Perez identified the defendant in court as the target of his investigation who he arrested on April 28, 2007.

Detective Watts’s testimony corroborated that of Detective Perez. He testified that on April 23, 2007, while assigned to the narcotics Special Operations group, he was directed by Detective Perez to set up surveillance in the 800 block of North Sal-cedo Street, between Orleans Avenue and St. Ann Street. He was given the defendant’s name and a description of the vehicle involved, a black-colored SUV. Accordingly, Detective Watts parked on North Salcedo Street between 4:30 and 4:45 p.m. in a non-police unit and began his surveillance. Twenty minutes into his surveillance, Detective Watts observed the defendant park his vehicle approximately fifteen to twenty yards away from him, exit the vehicle, and pace |4back and forth. Approximately three to four minutes later, a police unit entered the block and the defendant discarded a small tin can he was holding in his hand into some shrubbery in front of 829 North Salcedo Street. The police unit — which was in the area unrelated to Detective Watts’ narcotics investigation — drove by. The defendant then retrieved the tin can, opened it, and manipulated something inside the can with his fingers. At that point, Detective Watts notified Detective Perez and Detective Gex of the suspicious activities he had observed. Within seconds, Detective Perez and Detective Gex pulled up to the defendant who was standing next to his SUV.

Detective Gex also testified at the motion hearing and trial, corroborating the testimony of Detectives Watts and Perez. He stated that on April 23, 2007, he first observed the defendant standing outside of a black Toyota “jeep” vehicle near the sidewalk of 829 North Salcedo Street. When the defendant saw him and his partner (Detective Perez) approach, he appeared very nervous, turning his body sideways and discarding an object off to his side into a little flower area. When asked his first reaction upon seeing defendant’s actions, Detective Gex replied: “Based on the information that Detective Watts had given us everything was an indication that he was in possession of narcotics and he was attempting to get rid of it because of police presence.” After exiting their vehicle, Detective Gex recovered the Altoids can that the defendant had discarded in a flowerbed between the sidewalk and the fence while his partner detained the defendant. Detective Gex identified the Altoids can in evidence as the one discarded by defendant that contained ten bags of cocaine. In addition, Detective Gex testified that six thousand dollars in |5U.S. currency, consisting of thirty one-hundred dollar bills and one hundred fifty twenty-dollar bills, was recovered from the defendant’s vehicle.

Detective Gex testified that the defendant’s actions, as relayed by Detective Watts — holding an object in his hand but, upon seeing a police unit pass, becoming very nervous and discarding the object into some shrubbery or grass and retrieving it only when the police vehicle left the area, then opening it up and manipulating the contents inside, as if checking on or counting its contents — were consistent with narcotics activity and that this was the basis of the decision to make an investigatory stop. He reiterated that as they pulled up behind defendant’s vehicle, the defendant discarded the object in his hand into a grassy area right in front of the fence. Although he conceded that he could not recall whether he and Detective Perez were still in their vehicle when defendant discarded the object in his hand, Detective Gex insisted that the defendant discarded it before they put their hands on him.

John Palm, a criminalist for the NOPD at the time of the defendant’s arrest, was qualified by the trial court as an expert in the chemical analysis of substances to determine whether they contain a controlled dangerous substance. Palm testified that he performed analysis on four of the ten small plastic bags in evidence and found them to be positive for cocaine. He testified that, although his report did not specify where the testing was performed, the type of machine used for the testing (as listed in the report) and the post-Hurricane Katrina testing time-frame indicated that the testing was done in the Jefferson Parish Crime Lab.

Jeffery Louis Zander, a forensic toxicologist from Sacramento, California, was qualified as an expert in the field of forensic toxicology and in the analysis of | f,narcotics such as cocaine, heroin and Ecstasy. He testified on behalf of the defendant that Mr. Palm’s report on the testing of the substances in the Altoids was faulty because the report did not indicate that that he ran a blank in the analyzing instrument at the end of the testing to insure that the instrument was not contaminated.

Anna Duggar, director of forensic chemistry at Loyola University, testified that she had been director of the NOPD Crime Lab for three and one-half years and had “signed off’ on Mr. Palm’s April 2007 report on the testing of the substances seized in the instant case. Ms. Duggar’s “best guess” was that the testing in this case had been done at the Jefferson Parish Sheriffs Office Crime Lab, based on the instrument noted as having been used in the testing. Ms. Duggar conceded that in April 2007 there were no written protocols in effect in the narcotics section, but stated that she essentially followed the “Scientific Working Group” (“SWG”) recommended minimum standards for forensic drug identification. She confirmed that the written protocols of the NOPD Crime Lab were destroyed in Hurricane Katrina and that the lab was without any written protocols from at least August 29, 2005, through her last day employed there in 2010. However, Ms. Duggar stated that the lab complied substantially with the SWG drug requirements — although she conceded that she had no written documentation showing such compliance.

When asked whether Mr. Palm had proficiency tests during the period of January 2007 through April 2007, or during the twelve months preceding April 2007, Ms. Duggar stated that he had not to her knowledge, adding that “there certainly had not been any occasions brought to our attention that Criminalist Palm was in need of any corrective action.” In addition, she asserted that blanks were run all day and every day but keeping records of them was time consuming. She |7conceded, however, that record-keeping was an important part of the technique and record-keeping process to show what the analyst did. Ms. Duggar said that analysts were instructed to record a positive or negative result on any test they actually performed.

Errors Patent

A review of the record reveals no errors patent on the face of the record. The State argues, however, that the trial court’s failure to order payment of court costs or to expressly waive the payment of court costs should be designated an error patent. We disagree.

La.Code Crim. Proc. art. 887(A), relied on by the State, states in pertinent part:

A. A defendant who is convicted of an offense or is the person owing a duty of support in a support proceeding shall be liable for all costs of the prosecution or proceeding, whether or not costs are assessed by the court, and such costs are recoverable by the party or parties who incurred the expense.... In addition, any judge of a district court ... within the state shall be authorized to suspend court costs (emphasis added).

Notably, La.Code Crim. Proc. art. 887(A) does not mandate the assessment of costs. Rather, the language “whether or not costs are assessed by the court,” contemplates that a trial court may or may not assess costs. Thus, if the defendant is convicted and therefore liable for costs, the State may, if so inclined, seek to recover those costs. In this case, the State failed to do so in the trial court. Because La. Code Crim. Proc. art. 887 does not mandate an assessment of costs, we decline to remand the matter back to the trial court under the guise of an error patent review.

[ ^Assignment of Error No. 1

In his first assignment of error, the defendant asserts that it was error for the trial court to deny his motion to suppress because the stop by Detectives Perez and Gex was “imminent” and, thus, an unlawful governmental intrusion that resulted in defendant abandoning the Altoids can with the cocaine inside. This argument presupposes, however, that Detectives Perez and Gex did not have reasonable suspicion to stop the defendant and, therefore, rendering the abandoned Altoids can (containing the cocaine) tainted fruit of an illegal stop.

The Fourth Amendment to the U.S. Constitution protects citizens against unreasonable searches and seizures. La. Const. art. 1, § 5, providing broader protection against unreasonable searches and seizures than the Fourth Amendment, states, in pertinent part, that “[ejvery person shall be secure in his person, property, communications, houses, papers, and effects against unreasonable searches, seizures, or invasions of privacy.” A seizure in violation of La. Const. art. 1, § 5 occurs when police, without reasonable suspicion, either actually stop an individual or create a situation wherein an actual stop of the individual is “imminent.” State v. Tucker, 626 So.2d 707, 713 (1993); see also State v. Hamilton, 2009-2205, p. 3 (La.5/11/10), 36 So.3d 209, 212 (when a citizen is actually stopped without reasonable cause or when a stop without reasonable cause is “imminent,” the right to be left alone is violated, rendering unlawful any resultant seizure of abandoned property).

In determining whether reasonable suspicion exists to conduct an investigatory stop, courts must take into account the totality of the circumstances in a process that allows police officers to draw upon their own experience and specialized training to make inferences from and deductions about the ' cumulative 19information available to them that might elude an untrained person. State v. Kirton, 2011-1201, p. 1 (La.6/24/11), 66 So.3d 431, 432 (citation omitted). The determination of whether reasonable suspicion exists for an investigatory stop is a purely objective inquiry that takes into account “all of the information known collectively to the law enforcement personnel involved in the investigation.” State v. Elliott, 2009-1727, p. 5 (La.3/16/10), 35 So.3d 247, 251 (citation omitted).

In the instant case, Detective Perez received information from a Cl who had proven reliable on numerous previous occasions that shortly after 5:00 p.m. on the date in question the defendant would leave his French Quarter pet supply business and travel to the 800 block of N. Salcedo Street in his black Toyota FJ Cruiser to make a narcotics sale. Detective Watts parked on North Salcedo Street between 4:30 and 4:45 p.m. and began his surveillance. Some twenty minutes later he observed the defendant park his vehicle in the 800 block of North Salcedo, get out, and pace back and forth. Approximately three to four minutes later, a police unit entered the block, whereupon the defendant discarded a small tin can he was holding in his hand into some shrubbery in front of 829 North Salcedo Street. After the police unit passed by, the defendant retrieved the tin can, opened it, and manipulated something inside it with his fingers. At that point, Detective Watts relayed the information to Detectives Perez and Gex and, based on his observation of suspicious activities, requested an investigatory stop of defendant. As Detectives Perez and Gex approached him, the defendant discarded the Altoids can containing the cocaine.

Thus, the two detectives clearly had reasonable suspicion to believe the defendant was committing an offense — possessing cocaine or some other controlled dangerous substance — at the time they proceeded toward him. The trial |incourt properly denied the defendant’s motion to suppress the evidence. There is no merit to this assignment of error.

Assignment of Eiror No. 2

In his second assignment of error, the defendant argues that the trial court erred in permitting the introduction of impermissible evidence of other crimes committed by him. Specifically, the defendant refers to the following question by the prosecutor and answer by Detective Perez, during the detective’s direct examination at trial:

BY STATE:
Q What first drew your attention to Mr. Golden?
A I received some information about a narcotics sale that may [sic] take place in the 800 block of—
DEFENSE COUNSEL:
Objection.
THE COURT:
Move on.
BY STATE:
Q In the 800 block of what?
A 800 block of [North] Salcedo Street.
Q With that information what did you decide to do?

Evidence of other crimes, wrongs or acts committed by the defendant is generally inadmissible because of the risk that the trier of fact will convict the |T defendant of the immediate charge based on his other criminal acts. State v. Jones, 99-0861, p. 17 (La.App. 4 Cir. 6/21/00), 769 So.2d 28, 40.

La.Code of Evid. art. 404(B)(1) states:

Except as provided in Article 412, evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident, provided that upon request by the accused, the prosecution in a criminal case shall provide reasonable notice in advance of trial, of the nature of any such evidence it intends to introduce at trial for such purposes, or when it relates to conduct that constitutes an integral part of the act or transaction that is the subject of the present proceeding.

Thus, while La.Code of Evid. art. 404(B)(1) generally bars admission of evidence of other crimes, wrongs or acts by the defendant, it does expressly permit the introduction of evidence of other crimes “when it relates to conduct that constitutes an integral part of the act or transaction that is the subject of the present proceeding.” State v. Colomb, 98-2813, p. 1 (La.10/1/99), 747 So.2d 1074. In this ease, the comment by Detective Perez referring to information he obtained from the Cl was integral to explaining why he directed Detective Watts to set up surveillance in the 800 block of North Salcedo Street. But even assuming arguendo that Detective Perez’s reference to the Cl telling him that the defendant intended to make a narcotic sale was an erroneous admission of other crimes evidence, the error was harmless. See State v. Robertson, 2006-1537, p. 9 (La.1/16/08), 988 So.2d 166, 172 (an error is harmless if it can be said beyond a reasonable doubt that the guilty verdict rendered in the case was not attributable to that error). The evidence introduced at trial was overwhelming: the testimony of three police officers corroborated the information received from the Cl and the contraband discarded by the defendant tested positive for cocaine. Accordingly, it 112strains commonsense to suggest that the jury was inclined to convict the defendant of simple possession of cocaine based, not on the evidence introduced at trial that he was in possession of an Altoids tin container containing cocaine, but because of what Detective Perez said the Cl said about a prospective narcotics sale. Accordingly, we find no merit in this assignment of error.

Assignment of Eiror No. 3

In his third assignment of error, the defendant argues that the trial court erred in denying his motion for a Daubert hearing on the admissibility of NOPD Crimi-nalist John Palm’s testimony concerning the results of his testing of the substances contained in the Altoids container.

The trial court acts as a gatekeeper to the admissibility of expert testimony. Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993); State v. Foret, 628 So.2d 1116, 1121 (La.1993). Because the determination regarding the competency of a witness is a question of fact, the trial judge is vested with wide discretion and, accordingly, rulings on the qualifications of an expert witness will not be set aside absent manifest error. State v. Young, 2009-1177, pp. 7-9 (La.4/5/10), 35 So.3d 1042, 1046-47.

In this case, prior to trial, the defendant filed a motion to exclude the testimony of NOPD Crime Lab Criminalist John Palm or, alternatively, to conduct a Daubert hearing to determine whether his testimony should be admitted. The trial court denied the motion(s), issuing a written ruling stating, in pertinent part:

Any weaknesses in the manuals, methods or lab record keeping are appropriate for cross examination at trial. The criminalist in question has been recognized repeatedly throughout the various sections of Criminal District Court, not to mention other state and federal courts, as an expert in his field, and has nearly 40 years of experience in the field. In light of this history and the explanations provided, this court | isbelieves that the threshold of reliability for admissibility has been met, as contemplated by Daubert and Foret.

This court denied the defendant’s application for supervisory review on the merits, noting the trial court’s reasons for its ruling and concluding:

Based on the trial court’s reasoning, we do not find that the trial court abused its discretion in denying the defense motion to exclude Mr. Palm’s expert testimony and the request for a Daubert Hearing.

State v. Golden, unpub., 2010-1003 (La.App. 4 Cir.9/7/10). The Louisiana Supreme Court subsequently denied writs and the defendant’s request for a stay. State v. Golden, 2010-2268 (La.10/13/10), 46 So.3d 1277.

Under the law-of-the-case doctrine, an appellate court will not reverse its pretrial determinations unless the defendant presents new evidence tending to show that the decision was patently erroneous and produced an unjust result. Courts of appeal generally refuse to reconsider their own rulings of law on a subsequent appeal in the same case. State v. Gillet, 99-2474, p. 5 (La.App. 4 Cir.5/10/00), 763 So.2d 725, 728.

In the instant case, the defendant’s writ argument as to this claim of error consisted of sixty-three lines and his appellate argument on this claim of error consists of seventy-three lines. Save for the concluding sentence in his writ argument, his appellate argument consists of his entire writ argument, with the same paragraph structure, with a total of eleven lines inserted at two points. Even considering the additional lines, the defendant’s appellate argument is the same as his pri- or writ argument. The additional verbiage merely stresses that his attack is not upon the testing instrument that was used to analyze the sample, which he admits “is widely accepted and used in the scientific community,” but that it is the “unreliable and invalid human inputs that are questioned.” This, however, is the | usame attack set forth in his original motion to exclude Palm’s testimony or, alternatively, conduct a Daubert hearing, i.e., “the New Orleans Crime Lab lacks quality assurance data, written standards, uniform procedures, tests of known negatives versus known positives, and other deficiencies which provide reliability to the scientific method used by the laboratory.” While the defendant vaguely asserts at the conclusion of his appellate argument on this issue that “[e]videnee produced at trial bears out the faulty technic [sic] applied by the analyst in the case at bar,” that is the extent of his reference to testimony adduced at trial. The defendant does not point to any particular faulty technique applied by Criminalist John Palm. Under these circumstances, we do not find that the defendant has established that this court’s prior, considered writ decision on the merits was patently erroneous and produced an unjust result. Accordingly, the law-of-the-case doctrine applies and we will not reconsider the pretrial writ decision on this claim of error.

Assignment of Error No. 4

Finally, in his last assignment of error, the defendant argues that the action of the Office of the Orleans District Attorney in recusing itself in 2007, yet continuing thereafter to prosecute him, constituted a structural defect/error in the proceedings, thus rendering the outcome of the case — his conviction — null and void, and necessitating a new trial.

The defendant submits that the State recused itself on December 20, 2007, citing a minute entry from that date which states:

The defendant, Henry W. Golden III, appeared before the court for re-allot [sic] case with counsel, A.J. Ibert.
The State recused [sic] itself in this matter.
The court recused itself in this matter and ordered the matter re-allotted.
|1fiThe trial court’s order of recusal states:
This Honorable Court hereby issues this order of Recusal for the following reasons:
STATE RECUSES ITSELF IN THE MATTER
It further orders that case be re-allotted excluding this Court from the allotment process.

Subsequent to the purported 2007 self-recusal by the “State” in Section “J,” the prosecution of defendant in this case by the Office of the Orleans Parish District Attorney’s Office continued unabated in other sections of Orleans Parish Criminal District Court, with Sections “H” and “E,” in turn, recusing themselves, before the case ended up in Section “L.” A February 12, 2009, minute entry apparently reflects the first proceeding in Section “L.” The purported 2007 self-recusal by the “State” is never referred to again. Rather, the defendant filed a motion to recuse the Office of the Orleans Parish District Attorney in Section “L” and the trial court granted the motion on June 12, 2009. However, the State filed a writ application and this court reversed the trial court ruling.

Structural errors are limited to errors that “infect the entire trial process and necessarily render a trial fundamentally unfair; they deprive a defendant of basic protections without which a criminal trial cannot reliably serve its function as a vehicle for determination of guilt or innocence.” State v. Ruiz, 2006-1755, p. 6 (La.4/11/07), 955 So.2d 81, 85 (citation omitted). Specifically, other than the following six restricted classes of cases, the U.S. Supreme Court has failed to find structural error of the sort requiring reversal of a conviction: (1) the total deprivation of the right to counsel; (2) a biased trial judge; (3) unlawful exclusion of grand jurors of defendant’s race; (4) denial of self-representation at trial; (5) | lfidenial of a public trial; and (6) a defective reasonable doubt instruction. State v. Langley, 2006-1041, p. 6, (La.5/22/07), 958 So.2d 1160, 1164.

In this case, the defendant’s argument is a simple one — that neither the recused District Attorney nor his staff would have had “jurisdiction” to proceed forward on the case after it recused itself. Even accepting arguendo that the defendant’s continued prosecution by a District Attorney’s Office that recused itself is problematic, it cannot be said that such action infected the entire trial process and necessarily rendered defendant’s trial fundamentally unfair, or that it deprived defendant of basic protections without which a criminal trial cannot reliably serve its function as a vehicle for determination of guilt or innocence.

Moreover, the defendant’s motion to re-cuse the Office of thé District Attorney indicates that the initial “self-recusal” was considered moot at that point. Notably, although the trial court granted the defendant’s motion to recuse the Office of the District Attorney, this court reversed that order and the Louisiana Supreme Court affirmed our ruling. State v. Golden, 2009-0920 (La.App. 4 Cir. 9/9/09), writ denied, 2009-2377 (La.1/8/10), 24 So.3d 856. Likewise, the stay order reflected in the July 10, 2009, district court minute entry, is clearly in reference to the State’s writ application seeking supervisory review of the June 12, 2009, district court judgment granting the defendant’s motion to recuse. When this court reversed that decision, the trial court denied the defendant’s motion for a stay order pending the Louisiana Supreme Court decision on his writ application seeking review of that decision, thus indicating that the stay order of July 10, 2009, was no longer in effect. Finally, the defendant does not allege that he was prejudiced by any confusion as to the duration of the stay. This assignment of error is without merit.

117Conclusion

The defendant’s conviction and sentence are affirmed.

AFFIRMED

      . The defendant is identified as Henry W. Golden III in the trial court minute entries and docket master; a May 2, 2007, minute entry from a bond hearing in Section "D” states that the trial court called “Henry Golden, Jr.” as a witness, and subsequently ruled that he would be permitted to sign a P.S.B.U. bond in the full amount of the bond set for defendant. It appears that defendant is Henry W. Golden III.

      . Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993).

      .When reviewing a trial court’s ruling on a motion to suppress, an appellate court is not limited to evidence adduced at the hearing on the motion to suppress; it may also consider pertinent evidence given at trial of the case. State v. Robinson, 2008-0652, p. 20 (La.App. 4 Cir. 5/13/09), 11 So.3d 613, 624. Accordingly, as there were no factual discrepancies between the testimony of the police officers at the motion hearing and trial, the facts are merged into one narrative to avoid redundancy.

      . The transcript indicates that the parties testifying frequently misidentified the street in question as South Salcedo Street rather than North Salcedo Street. To avoid confusion, we refer only to North Salcedo Street.

      . The State argues, pursuant to La.Code Crim. Proc. art. 841(A), that the defendant failed to preserve the issue for review because defense counsel failed to specify the ground for his objection. However, in the instant case, the ground was obvious, and defense counsel would have been remiss if he had stated the ground in open court within the hearing of the jury, as it would have emphasized the reference to the sale of narcotics. While defense counsel could have asked to approach the bench to make his objection, given the obvious nature of the objection, it was not necessary.


author: ROLAND L. BELSOME, Judge.

text:
    STATE of Louisiana v. Eric D. LEWIS.
    No. 2011-KA-0999.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 23, 2012.

      Leon A. Cannizzaro, Jr., District Attorney, Scott G. Vincent, Assistant District Attorney, New Orleans, LA, for State of Louisiana.
    Mary Constance Hanes, Louisiana Appellate Project, New Orleans, LA, for Defendant/Appellant.
    (Court composed of Judge DENNIS R. BAGNERIS, SR., Judge ROLAND L. BELSOME, Judge PAUL A. BONIN).
   ROLAND L. BELSOME, Judge.

I,STATEMENT OF THE CASE

On March 20, 2008, Eric D. Lewis was indicted with one count each of first degree robbery and armed robbery with a firearm. Mr. Lewis plead not guilty at his arraignment on March 26, 2008.

On September 26, 2008, the court conducted a preliminary hearing to determine if probable cause existed and a hearing on Mr. Lewis’ motion to suppress identification. At the conclusion of the hearing, the court denied Mr. Lewis’ motion to suppress identification and found that sufficient probable cause existed to substantiate the charges.

On October 7 and 13, 2009, a jury trial was held. Following a two day jury trial, the jury found the defendant not guilty as to count one, first degree robbery, La.Rev. Stat. § 14:64.1. As to count two, the defendant was found guilty of the lesser charge of first degree robbery, La.Rev. Stat. § 14:64.1. On February 12, 2010, Mr. Lewis filed a motion for a new trial, which the court denied. On this same day, the trial court sentenced Mr. Lewis to serve forty years at hard labor with credit for time served. This appeal followed.

| STATEMENT OF THE FACTS

On January 6, 2008, around 7:35 a.m., New Orleans Police Department (“NOPD”) was dispatched to the Good Friends Bar, located at 740 Dauphine Street, to investigate an armed robbery. Officers Edward Davis and Mark Boyle arrived at the scene of the crime and then spoke to Lucas Abramson, the bartender and victim of the robbery.

Mr. Abramson testified that he was robbed while working at Good Friends Bar. He stated that on January 6, 2008, a gentleman walked in, put a note on the bar, and motioned down. Mr. Abramson stated that the note represented the person had a gun in a bag and requested that money be placed in the bag or he would “blow” Mr. Abramson away. Mr. Abram-son verbally responded to the request by asking the defendant if he was serious. The defendant responded by rearing up to Mr. Abramson and by raising the gun out of the bag. Mr. Abramson proceeded to the cash register; however, the defendant told Mr. Abramson “put your hands up.” Mr. Abramson then removed the ten and twenty dollar bills from the register and gave them to the defendant who in turn bolted out of the door.

Detective Jason Giroir was assigned as the primary detective investigating the robbery. Detective Giroir testified that his role in the investigation was to determine who perpetrated the robbery at Good Friends Bar. Through the course of the investigation, officers learned from Mr. Abramson that Kirk Toups witnessed part of the robbery. Mr. Toups told police officers and also testified at trial that the bartender sent him to go get coffee the morning of the robbery. When Mr. Toups returned with the coffee, he saw Mr. Abramson hand over the money from the bar’s cash register to a man that appeared to be holding a weapon. Mr. |sToups testified he then saw the perpetrator run away from the bar. Mr. Toups was not able to provide officers with a positive identification of the perpetrator.

Detective Giroir testified that in addition to canvasing the crime scene, he viewed a surveillance video of the actual armed robbery. The video was confiscated and brought back to the police station and turned over to Central Evidence and Property for safekeeping until trial. In addition to the video, officers recovered the demand note left by the perpetrator. Detective Giroir testified that the demand note was not processed for fingerprints. He stated that he could not honestly state that the handwriting on the letter was Mr. Lewis’ handwriting.

A week following the robbery, NOPD contacted Mr. Abramson to potentially identify the perpetrator. Officer Lewis Labat and Detective Donald Haynes met up with Mr. Abramson in front of his house and presented him with a photographic lineup. Mr. Abramson testified that he picked person number six from the lineup before the detectives could finish giving him instructions on the identification process. Mr. Abramson then signed the back of Mr. Lewis’ picture in the photographic lineup to indicate that Mr. Lewis was the perpetrator of the robbery. Mr. Abramson testified that he was not forced, coerced, or threatened to pick from the lineup.

Officer Louis Labat, one of the officers responsible for developing Mr. Lewis as a suspect, testified at trial regarding the photographic lineup presented to Mr. Abramson. Officer Labat’s testimony corroborated Mr. Abramson’s account of the identification process. Officer Labat testified that he and Detective Haynes met Mr. Abramson the same day they received the photographic lineup. Officer Labat testified that he told Mr. Abramson that the police had a suspect and he was to see if he could or could not identify the perpetrator of the robbery. Officer 14Labat stated that Mr. Abramson immediately identified the defendant. At the hearing for Mr. Lewis’ motion to suppress, Officer Labat testified that Mr. Abramson got excited when he saw the defendant in the line-up. The detective also testified that he did not force or coerce Mr. Abramson to pick anyone out of the lineup. Further, Officer Labat did not indicate whether Mr. Abramson selected the correct person.

Based on the positive identification by Mr. Abramson, officers obtained a warrant for Mr. Lewis’ arrest. At the trial, Sergeant Eric Gillard, who was assigned to the Special Operations Division Warrant squad at the time this crime occurred, testified that he was responsible for apprehending Mr. Lewis. Sergeant Gillard testified that NOPD received information that there were outstanding warrants against Mr. Lewis. Sergeant Gillard subsequently executed the warrant after receiving information that Mr. Lewis was at a hotel located on Tulane Avenue in New Orleans, Louisiana. Sergeant Gillard testified that he found Mr. Lewis at the hotel hiding in the bathtub but did not find any weapons or the clothes worn by the perpetrator at the time of the robbery. At the trial, Sergeant Gillard identified Mr. Lewis, while he sat next to his attorney, as the person he apprehended on April 18, 2008.

ERRORS PATENT

A review for errors patent reveals an error in defendant’s sentence for first degree robbery. A person convicted of first degree robbery shall be imprisoned at hard labor for not less than three years and for not more than forty years, without benefit of parole, probation or suspension of imposition or execution of sentence. La.Rev.Stat. § 14:64.1.

|BIn this case, the trial court failed to state that defendant’s forty year sentence for first degree robbery was to be served without benefit of probation, parole or suspension of sentence. Accordingly, defendant’s sentence is illegally lenient. However, in instances where the statutory restrictions are not recited at sentencing, the restrictions are contained in the sentence, whether or not imposed by the sentencing court. La.Rev.Stat. § 15:301.1(A); State v. Hawkins, 11-0193, p. 4 (La.App. 4 Cir.11/16/11); 78 So.3d 293, 296. Hence, this Court need take no action to correct the trial court’s failure to specify that the defendant’s sentence be served without benefits. State v. Wyatt, 11-0219, p. 20 (La.App. 4 Cir.12/22/11); 83 So.3d 131, 143. The correction is statutorily effected. La.Rev.Stat. § 15:301.1(A).

ASSIGNMENT OF ERROR

In Mr. Lewis’ sole assignment of error, he contends that the evidence is insufficient to support his conviction, because the State failed to negate any reasonable probability of misidentifieation.

LAW AND ANALYSIS

The applicable standard of review for this Court when determining if the State presented sufficient evidence to support a conviction is controlled by the standard set forth in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). State v. Robinson, 11-0066, p. 8 (La.App. 4 Cir. 12/7/11); 81 So.3d 90, 95. Under the Jackson standard, this Court must determine whether, viewing the evidence in the light |fimost favorable to the prosecution, any rational trier of fact could have found the defendant guilty beyond a reasonable doubt. Jackson, 443 U.S. at 319, 99 S.Ct. 2781; State v. Kelly 10-0853, p. 6 (La.App. 4 Cir.12/12/10); 54 So.3d 1159, 1162. The reviewing court may not discharge this duty simply because the record contains evidence that tends to support each fact necessary to constitute the crime. State v. Mussall, 523 So.2d 1305, 1311 (La.1988). The reviewing court must consider the record as a whole, and if the court finds that no rational trier of fact could have found the defendant guilty beyond a reasonable doubt, the conviction cannot be upheld. Id. at 1309.

In this case, Mr. Lewis was convicted of first degree robbery, a violation of La.Rev. Stat. § 14:64.1. To convict a defendant of first degree robbery the State must prove that the defendant took something of value by use of force or intimidation, or led the victim to reasonably believe that he was armed with a dangerous weapon. State v. Simmons, 99-1154, p. 4 (La.App. 4 Cir.12/6/00); 779 So.2d 856, 860, writ denied 801 So.2d 864, 2001-0767 (La.11/9/01). The thrust of Mr. Lewis’ contention on appeal is not that the elements of the offenses were not satisfied but rather that the State failed to negate the possibility of misidentification. Mr. Lewis argues that the victim of the robbery, Mr. Abramson, did not have the ability to make any identification because he could not even recognize Mr. Toups, the bar patron who got him coffee and stayed with him until the police arrived, on the morning of the robbery. Mr. Lewis also argues that the surveillance video does not show the perpetrator’s full face, and there is no physical evidence linking Mr. Lewis to the robbery. Accordingly, Mr. Lewis Largues that the State failed to negate any reasonable probability that he was the person who robbed Mr. Abramson at the Good Friends Bar.

When, as in this case, a defendant challenges identity, the State must negate any reasonable probability of mis-identification to satisfy its burden to establish every element of the crime beyond a reasonable doubt. State v. Kelly, 10-0853, p. 6 (La.App. 4 Cir. 12/12/10); 54 So.3d 1159, 1163 (citing State v. Smith, 430 So.2d 31, 45 (La.1983)). The standard for determining the reliability of identification or the substantial likelihood of misidentification is set forth in Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977). State v. Stewart, 04-2219, p. 6 (La.App. 4 Cir. 6/29/05); 909 So.2d 636, 639, writ denied, 929 So.2d 1250 (La.6/2/06). In accordance with Manson, this Court considers five factors to determine the reliability of an identification: (1) the opportunity of the witness to view the perpetrator at the time of the crime; (2) the witness’ degree of attention; (3) the accuracy of his or her prior description of the perpetrator; (4) the level of certainty demonstrated at the confrontation; and (5) the length of time between the crime and the confrontation. State v. Moody, 09-1394, p. 3 (La.App. 4 Cir. 4/21/10); 38 So.3d 451, 454, writ denied, 49 So.3d 887 (La.11/12/10) (citing Manson supra). Utilizing the Manson factors, places the focus on the victim’s visual identification of the perpetrator. Robinson, 11-0066 at p. 9, 81 So.3d at 96.

A positive identification by only one witness is sufficient to support a conviction. State v. Neal, 00-0674, p. 11 (La.6/29/01); 796 So.2d 649, 658. The fact-finder’s determination concerning the credibility of a witness will not be disturbed unless it is clearly contrary to the evidence. State v. James, 09-1188, p. 4 (La.App. 4 Cir. 2/24/10); 32 So.3d 993, 996.

| Applying the Manson factors, we find the identification procedure did not produce the likelihood of misidentification. First, Mr. Abramson had ample opportunity to view Mr. Lewis during the robbery. A review of Mr. Abramson’s testimony and the surveillance video evidences that Mr. Abramson spent an adequate amount of time looking at Mr. Lewis’ face. The surveillance video shows that Mr. Abramson interacted with the perpetrator for two to three minutes during the course of the robbery, and that the perpetrator stood two to three feet away from him. At trial, Mr. Abramson testified that he had the opportunity to get a good look at the perpetrator. Mr. Abramson stated that there was no doubt in his mind about who committed the robbery.

The second factor to consider is the witness’ degree of attention. Mr. Abram-son’s testimony shows that he was able to maintain a great deal of attention during the robbery, because Mr. Abramson questioned Mr. Lewis during the robbery. ' Mr. Abramson testified that when Mr. Lewis approached the bar, Mr. Lewis put a note on the bar. Mr. Abramson assumed that Mr. Lewis was. deaf and had placed his drink order on the note. Mr. Abramson approached Mr. Lewis and asked what he wanted to drink. Mr. Lewis then motioned for Mr. Abramson to read the note. Mr. Abramson verbally responded to the request in the note. The defendant then responded by raising the gun out of the bag to show Mr. Abramson he was serious about the robbery. The fact that Mr. Abramson was able to recall specific facts about what occurred further indicates that Mr. Abramson maintained a great deal of attention while the crime was being committed.

Applying the third Manson factor, the accuracy of the witness’ prior description of the perpetrator, we find that Mr. Abramson’s description of Mr. Lewis was consistent and unwavering. Mr. Abram-son’s initial physical description |nof the robber was that of a black male, five-nine to five-eleven in height, with large lips and a wide nose. Mr. Abramson’s physical description of Mr. Lewis was consistent with person number six on the photographic lineup. Thus, Mr. Abramson’s initial description of Mr. Lewis was accurate.

An evaluation of the evidence using the fourth Manson factor shows that. Mr. Abramson was certain when he identified Mr. Lewis as the robber. When officers presented the photographic lineup to Mr. Abramson, he immediately and positively identified person number six in the lineup, Mr. Lewis. Officer Labat also testified that Mr. Abramson easily picked Mr. Lewis out of the lineup. At trial, Mr. Abram-son confirmed that the same person sitting in the courtroom, Mr. Lewis, was number six from the photographic lineup. Mr. Abramson has consistently identified Mr. Lewis as the perpetrator of the robbery. Applying the fourth Manson factor, we find that Mr. Abramson’s identification of Mr. Lewis at trial and during the officers’ presentation of the lineup was clear and unambiguous.

Finally, weighing the evidence against the last Manson factor, we find that there was not a great deal of time between the crime and the confrontation. In this ease, the robbery occurred on January 6, 2008. On January 12, 2008, when police officers presented Mr. Abramson with a photographic lineup Mr. Lewis was identified as the robber. Six days elapsed between the time of the robbery and the photographic lineup presentation and identification.

Considering the Manson factors in relation to the testimony provided by the witnesses and the surveillance video, we find sufficient evidence was presented to the jury that the defendant was the perpetrator of the robbery. Mr. Abramson positively identified Mr. Lewis as the perpetrator. In fact, Detective Giroir testified that after reviewing the surveillance video he could positively say that Mr. |TnLewis committed the robbery. Detective Giroir stated the identification of Mr. Lewis as the perpetrator is accurate, because Mr. Lewis’ physical characteristics matched the person in the video. Viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found that the State’s witnesses were credible and that Mr. Lewis was guilty of first degree robbery.

DECREE

In conclusion, given the record before this Court, we affirm Eric D. Lewis’ conviction and sentence.

AFFIRMED

      . Eric D. Lewis is also known as Rodney Atkins.

      . La.Rev.Stat. § 15:301.1(A) provides:
      When a criminal statute requires that all or a portion of a sentence imposed for a violation of that statute be served without benefit of probation, parole, or suspension of sentence, each sentence which is imposed under the provisions of that statute shall be deemed to contain the provisions relating to the service of that sentence without benefit of probation, parole, or suspension of sentence. The failure of a sentencing court to specifically state that all or a portion of the sentence is to be served without benefit of probation, parole, or suspension of sentence shall not in any way affect the statutory requirement that all or a portion of the sentence be served without benefit of probation, parole, or suspension of sentence.


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

text:
    ARGENCE, L.L.C. Formerly M.O. “Jack” Argence & Sons Inc. v. BOX OPPORTUNITIES, INC. d/b/a Chicken Box, et al.
    No. 2011-CA-1732.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 23, 2012.

      Gregory B. Badeaux, Madisonville, LA, for PlaintifflAppellant.
    (Court composed of Judge DENNIS R. BAGNERIS, SR., Judge MAX N. TOBIAS, JR., Judge MADELEINE M. LANDRIEU).
   MAX N. TOBIAS, JR., Judge.

IjThe plaintiff/appellant, Argence, L.L.C., formerly M.O. “Jack” Argence & Sons, Inc. (“Argence”), appeals judgments of the First City Court of the City of New Orleans that dismissed ex parte its lawsuit with prejudice as abandoned under La. C.C.P. art. 561, declined to grant a new trial from the ex parte judgment of dismissal on the grounds of abandonment, and permitted ex parte the defendants/ap-pellees, Box Opportunities, Inc. d/b/a Chicken Box, Wagner, Inc., and Aberta, Inc. (collectively hereinafter, “Box”), removal of funds deposited in the registry of the court. For the reasons that follow, we amend the judgment of dismissal and as amended, affirm.

The record on appeal reflects that on .1 July 2008, a judgment on Box’s motion for new trial, apparently prepared by Box’s counsel as the prevailing party, was filed into the record of the trial court respecting a contradictory hearing held on 25 June 2008. The trial court signed the judgment on 10 July 2008 and a notice of judgment dated that same day was issued. The record on appeal does not reflect that the notice of judgment was mailed to counsel for the parties as required by La. |2C.C.P. art. 1913, although it is presumed that the clerk of the trial court complied with the law. A copy of the judgment, but not the notice of judgment, was also served by a deputy constable of First City Court on Box’s counsel of record on 15 July 2011. New counsel for Box enrolled on 18 September 2008. On 8 July 2011, Argence’s counsel filed a motion to set the trial on the merits. On 5 August 2011, counsel for Box filed ex parte motions to dismiss Ar-gence’s suit as abandoned pursuant to La. C.C.P. art. 561 and to remove money it deposited in the registry of the court; the same motions were again filed in the trial court on 12 August 2011. Both ex parte motions of 12 August 2011 resulted in a judgment signed on 15 August 2011, granting dismissal of Argence’s suit with prejudice and ordering delivery of the money in the court registry to counsel for Box; a notice of judgment also issued on 15 August 2011. Thereafter a motion to set aside the 15 August 2011 judgment was by filed by Argence, which was ultimately denied, and the current timely appeal ensued.

On appeal, Argence asserts that the trial court erred by granting the motions to dismiss for abandonment and permitting Box’s counsel to withdraw the funds in the court registry.

La. C.C.P. art. 561 in pertinent part states:

A. (1) An action ... is abandoned when the parties fail to take any step in its prosecution or defense in the trial court for a period of three years, unless it is a succession proceeding:
(3) This provision shall be operative without formal order, but, on ex parte motion of any party or other interested person by affidavit which provides that no step has been timely taken in the prosecution or defense of the action, the trial court shall enter a formal order of dismissal as of the date of its abandonment. The sheriff shall serve the order in the manner provided in Article 1314, and shall execute a return pursuant to Article 1292.
(4) A motion to set aside a dismissal may be made only within thirty days of the date of the sheriffs service of the order of dismissal. If the trial court denies a timely motion to set aside the dismissal, the clerk of court shall give notice of the order of denial pursuant to Article 1918(A) and shall file a certificate pursuant to Article 1913(D).
(5) An appeal of an order of dismissal may be taken only within sixty days of the date of the sheriffs service of the order of dismissal. An appeal of an order of denial may be taken only within sixty days of the date of the clerk’s mailing of the order of denial.
B. Any formal discovery as authorized by this Code and served on all parties whether or not filed of record, including the taking of a deposition with or without formal notice, shall be deemed to be a step in the prosecution or defense of an action. [Emphasis supplied.]

This article makes it clear that a party must take the action to move a case to final disposition, not the trial judge. We can find no jurisprudence, and Ar-gence cites none, that states that the rendition of a judgment by a trial judge interrupts the three-year abandonment period. Further, a motion to enroll as counsel of record is not a step in the prosecution of a case. London Livery, Ltd. v. Brinks, 08-0230, p. 3 (La.App. 4 Cir. 12/10/08), 3 So.3d 13, 15, citing Brumfield v. McElwee, 07-0548, p. 2 (La.App. 4 Cir. 1/16/08), 976 So.2d 234, 237.

|4The motion to set the trial filed on 8 July 2011 was filed more than three years after the draft judgment was filed on 1 July 2008 seeking the judge’s signature thereon and more than three years after the 25 June 2008 hearing. No action in prosecution or defense of the cause of action occurred within three years and Ar-gence’s lawsuit was indeed abandoned as of 25 June 2008. The trial court therefore did not err in granting the ex parte judgment of dismissal and concomitantly did not err in rendering judgment ex parte allowing Box to withdraw the monies placed by them in the court’s registry.

Nevertheless, we do note that the trial court erred by ordering the dismissal of Argence’s suit with prejudice. A dismissal on grounds of abandonment may only be made without prejudice. Tasch, Inc. v. Horizon Group, 08-0635, p. 4 (La.App. 4 Cir. 1/7/09), 3 So.3d 562, 565, citing DeSalvo v. Waguespack, 187 So.2d 489 (La.App. 4th Cir.1966). See La. C.C.P. arts. 2129 and 2164.

For the foregoing reasons, we amend the 15 August 2011 judgment of the trial court to dismiss Argence’s suit against Box without prejudice; and as amended, we affirm the judgment of the trial court. AMENDED; AS AMENDED, AFFIRMED.

      . On appeal, Argence does not assert that the notice of judgment was not mailed to counsel of record.

      . The service return merely reflects that the judgment was served.

      . Although the judgment formally says that it is an order, the decretal language clearly demonstrates that it is a formal judgment.

      . If a trial judge fails or refuses to sign or render a judgment following a trial or hearing, it is incumbent on a party to mandamus the judge to do so, and in such a case, the mandamus would likely constitute a step in the prosecution or defense of the suit.

      . We know of no law or jurisprudence that requires that a proposed judgment be formally filed in the trial court record. See and cf., Uniform District Court Rule 9.5. Therefore, the hearing date of 25 June 2008 is the appropriate date from which the three years commenced to run.