author: CARAWAY, J.

text:
    STATE of Louisiana, Appellee v. Freddie LEE, Jr., Appellant.
    No. 46,742-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 14, 2011.

      J. Ransdell Keene, Shreveport, LA, for Appellant.
    J. Schuyler Marvin, District Attorney, John M. Lawrence Assistant District Attorney, for Appellee.
    Before WILLIAMS, CARAWAY and DREW, JJ.
   CARAWAY, J.

11 Freddie Lee, Jr., entered a Crosby plea with an agreed sentence to the charge of possession of 400 grams or more of cocaine with intent to distribute which reserved his right to appeal the trial court’s denial of his motion to suppress the evidence. In keeping with the plea agreement, Lee received a sentence of 15 years at hard labor with credit for time served. He now appeals the denial of his motion to suppress. We affirm.

Facts

At 2:17 a.m. on June 29, 2007, Freddie Lee, Jr., was one of four occupants in a vehicle which was the subject of a traffic stop on Interstate 20 in Bossier City, Louisiana. A vehicle search during that stop revealed 3,880 grams of cocaine in a safe inside the trunk of the car. Lee and the three other occupants of the vehicle were charged in the same bill of information filed on August 1, 2007, with one count of possession of 400 or more grams of cocaine with intent to distribute, a violation of La. R.S. 40:967(A)(1) & (F)(1)(c).

On July 18, 2008, Lee filed a motion to suppress any and all physical evidence seized during the alleged unconstitutional search and seizure of the vehicle. The motion came for hearing on April 3, 2009. Sgt. Jason Parker, with the Louisiana State Police, testified that on June 29, 2007, he was on patrol on 1-20 in Bossier City when he observed a vehicle traveling in the left-hand lane for a total of two miles at approximately 45 to 50 mph without passing any other vehicles. After following the vehicle for about a |2mile he activated his patrol unit’s camera equipment and recorded the violation. Sgt. Parker acknowledged that at one point there were construction barricades on the right shoulder of the road, but that the suspect vehicle continued in the left lane after there were no longer any barricades. Accordingly, Sgt. Parker made a vehicle stop.

In conducting the stop, Sgt. Parker testified that he encountered several circumstances which led him to suspect further criminal activity. The driver, Antonio Morris, appeared nervous when he produced his license as his hand was shaking. Furthermore, Morris could not tell Sgt. Parker where he was coming from other than the State of Texas. The front passenger of the vehicle, Carlos Smith, on the other hand, told Sgt. Parker that they were coming from a family reunion in Irving, Texas. The owner of the vehicle was not present, and the parties reported that they were returning to Florida. There were eight air fresheners hanging from the rearview mirror. Sgt. Parker testified that in his experience, the presence of that many air fresheners could suggest an effort to mask the odor of illegal narcotics. Finally, when Sgt. Parker called the names of Morris and Smith into dispatch, he was advised that they had criminal histories involving illegal drugs and resisting an officer. As a result of the criminal histories, Sgt. Parker requested backup and was shortly joined by Trooper George Beck and Sgt. Sean Joyner.

After issuing the citation, Sgt. Parker asked Morris if he could search the vehicle. When Morris refused, Sgt. Parker testified that Sgt. Joyner radioed a request for a K-9 unit to conduct a perimeter search of the vehicle. |sSgt. Parker estimated that approximately 20 minutes elapsed between the time of the initial stop and the refusal of consent to search, and that 35 minutes elapsed between the time of the refusal of consent and the arrival of the K-9 unit. Sgt. Parker testified that when the drug dog alerted on the vehicle, a search was conducted. In the trunk of the vehicle, officers found a Century safe which they accessed with a key from the key ring in the vehicle’s ignition. Sgt. Parker testified that the safe contained approximately four kilos of cocaine.

Sgt. Joyner confirmed that he responded to the call for backup by Sgt. Parker in order to assist in the vehicle search. When Sgt. Joyner arrived, he observed four individuals in a vehicle and called Troop G to request a K-9 unit when the driver refused consent to search. Sgt. Joyner remained until the K-9 unit arrived and the subsequent search of the vehicle was conducted. He testified that after the dog alerted, a search of the trunk occurred and a safe containing 4 kilos of suspected cocaine was found. While he recognized Lee as one of the occupants of the vehicle, Sgt. Joyner could not recall that Lee did anything specifically that raised suspicion.

Trooper Sears testified that he was the K-9 handler called out to the scene of the traffic stop. When he arrived, he deployed his dog to perform a “free-air” vehicle sniff around the vehicle. Sears testified that the dog gave a positive response at the rear of the vehicle on all three passes, specifically at the trunk and at the right rear corner panel. Sears also confirmed that a subsequent search of the vehicle’s trunk revealed a safe containing 4 kilos of cocaine.

|/The dash-cam video recording from Sgt. Parker’s patrol unit was also introduced into evidence. The video begins at the 2:17:37 time mark on the camera’s clock with a rear view of a white Mercedes-Benz vehicle traveling in the left lane of a multilane highway. To the right can be seen the beginning of a row of concrete barriers set up on the right shoulder of the highway. The concrete barriers end at approximately 2:18:03 and at 2:18:19 the recording indicates Sgt. Parker’s activation of the patrol unit’s overhead lights. After the vehicles stop, Sgt. Parker is observed asking the driver to step out and meet him at the rear of the vehicle. Sgt. Parker asks the driver for his license and explains to “Mr. Morris” that he pulled him over for traveling in the left-hand lane of the highway for an extended period of time while not passing any vehicles. When Sgt. Parker asked Morris where they were coming from, he could not be any more specific than “Texas.” When Sgt. Parker indicated that Morris may have been weaving within his own lane, Morris told Sgt. Parker that he had been driving since “six,” apparently indicating 6:00 p.m. Sgt. Parker asked Morris to remain by the patrol unit while Sgt. Parker approached the front seat passenger of the car to get the registration. The passenger indicated to Sgt. Parker that Morris had only been driving a few minutes, and that the occupants of the vehicle were all coming from a family reunion in Texas. Sgt. Parker returned to Morris and asked him what they had been doing in Texas. Morris replied that they had been attending a wake for one of his cousin’s “home boys.” Both Morris and the passenger can be heard telling Sgt. Parker that the car belonged to an individual named “Eric,” who was not with them in the vehicle.

lüAt this point in the video, Sgt. Parker asked Morris to wait for him at the rear of the Mercedes while Sgt. Parker entered the patrol unit and called for histories on Antonio Morris (the driver) and Carlos Smith (the front seat passenger). Sgt. Parker can be heard talking about the nervousness of the two individuals and their inconsistent stories about where they had been. Sgt. Parker also marvels at the fact that the driver is not aware of the location in Texas from which he was coming. While dispatch cannot be heard, Sgt. Parker states that both Morris and Smith have criminal histories involving narcotics and resisting arrest, and in Smith’s case, resisting arrest with violence. Sgt. Parker is heard requesting backup before he exits the vehicle. He then explains to Morris the traffic citation which Sgt. Parker was issuing to him.

According to the camera clock, the portion of the stop dealing with the issuance of the traffic citation is completed at 2:40 a.m. Shortly before the completion, a backup officer is observed walking in front of the camera. At that point, Sgt. Parker asks Morris for permission to search the vehicle, which Morris refuses. Sgt. Parker communicates the refusal to the other officers who have arrived. The officers then ask all the occupants to exit the vehicle while they wait for the K-9 unit to arrive. While they wait, the occupants of the vehicle can be heard questioning officers about whether they are under arrest. They are told they are not, but that the vehicle is being detained pending the arrival of the drug dog. One of the occupants can also be heard requesting his phone which he tells officers is in the back seat of the vehicle. The audio portion of the video indicates that an officer responded to the 1 ^request by retrieving the phone from the vehicle, although the particular actions of the officer regarding the vehicle are not visible on the recording.

While the visibility is bad due to darkness and moisture on the patrol unit windshield, the K-9 dog is first visible on the camera at approximately 3:22 a.m. After the K-9 officer informs Sgt. Parker that the dog alerted on the rear of the vehicle, Sgt. Parker conducts a search of the Mercedes. In the course of trying to gain access to the trunk of the vehicle, Sgt. Parker is heard to have discovered Lee’s driver’s license in the backseat of the vehicle. Once officers finally gain access to the trunk they can be heard talking about finding a Century safe to which they gain access at approximately 3:47 a.m.

After taking the matter under advisement for the viewing of the dash-cam video, the trial judge issued his ruling denying the motion to suppress. In his reasons, the judge noted that the inconsistent statements given by the driver and passenger of the vehicle, them nervousness, the driver’s lack of knowledge about where his travels began, the eight air fresheners, and the drug-related criminal histories of the occupants “all g[a]ve rise to the probable cause to conduct the warrantless search and seizure.”

On January 25, 2011, the defendant entered a Crosby plea to the charge of possession of with intent to distribute 400 grams or more of cocaine, specifically reserving his right to appeal the denial of his motion to suppress. The plea was entered pursuant to an agreed sentence of 15 years at hard labor, which the trial court imposed after the defendant waived any sentencing delays. The state also nol prossed the conspiracy charge pending against the defendant under a separate docket number. The instant appeal followed.

| tDiscussion

Lee argues that the initial stop of the vehicle was illegal as no traffic law violation had occurred. Defendant does not deny that his vehicle was traveling in the left-hand lane. Yet, he insists that the defendants were traveling in the left lane through the area with barricades on the right shoulder of the road, which made the officer’s suspicion of a traffic violation unreasonable. Lee also asserts that even if the traffic stop was justified, the trooper had no basis to detain him beyond the period necessary to issue the traffic citation. He argues that the past criminal records of the driver and front seat passenger alone did not satisfy the reasonable suspicion requirement for the lengthy detention. Finally, the defendant argues that the officer’s conduct in searching the trunk of the vehicle without a warrant was not constitutionally valid as a search incident to a lawful arrest under Arizona v. Gant, 556 U.S. 332, 129 S.Ct. 1710, 1723-1724, 173 L.Ed.2d 485 (2009).

The state bears the burden of proof when a defendant files a motion to suppress evidence obtained without a warrant. La.C.Cr.P. art. 703(D). A trial court’s denial of a motion to suppress is afforded great weight and will not be set aside unless a preponderance of the evidence clearly favors suppression. State v. Khalfani, 43,647 (La.App.2d Cir.10/29/08), 998 So.2d 756, writ denied, 09-0267 (La.11/6/09), 21 So.3d 305; State v. Pena, 43,321 (La.App.2d Cir.7/30/08), 988 So.2d 841.

The right of every person to be secure in his person, house, papers and effects against unreasonable searches and seizures is guaranteed by the Fourth Amendment to the United States Constitution and by Article I, § 5, of the 1974 |sLouisiana Constitution. It is well settled that a search and seizure conducted without a warrant issued on probable cause is ;per se unreasonable unless the warrantless search and seizure can be justified under one of the narrowly drawn exceptions to the warrant requirement. State v. Thompson, 02-0333 (La.4/9/03), 842 So.2d 330; State v. Tatum, 466 So.2d 29 (La.1985); State v. Lawrence, 45,061 (La.App.2d Cir.3/3/10), 32 So.3d 329, writ denied, 10-0615 (La.10/8/10), 46 So.3d 1265.

The purpose of limiting warrantless searches to certain recognized exceptions is to preserve the constitutional safeguards provided by a warrant, while accommodating the necessity of warrantless searches under special circumstances. Donovan v. Dewey, 452 U.S. 594, 101 S.Ct. 2534, 69 L.Ed.2d 262 (1981); Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).

The authority and limits of the Fourth Amendment apply to investigative stops of vehicles. United States v. Sharpe, 470 U.S. 675, 105 S.Ct. 1568, 84 L.Ed.2d 605 (1985); United States v. Hensley, 469 U.S. 221, 105 S.Ct. 675, 83 L.Ed.2d 604 (1985). The stopping of a vehicle and the detention of its occupants is a seizure within the meaning of the Fourth Amendment. State v. Birgans, 45,982 (La.App.2d Cir.1/26/11), 57 So.3d 478; State v. Lawrence, supra; State v. Khalfani, supra; State v. Pena, supra.

The standard for evaluating a challenge to a routine warrantless stop for violating traffic laws is the two-step formulation articulated in Terry v. Ohio. State v. Birgans, supra; State v. Lawrence, supra; State v. Khalfani, supra; State v. Pena, supra. The court must determine whether the officer’s action was justified at its inception and whether it was reasonably related in scope to 10the circumstances which justified the interference in the first place. Terry v. Ohio, supra.

For a traffic stop to be justified at its inception, an officer must have an objectively reasonable suspicion that some sort of illegal activity, such as a traffic violation, occurred or is about to occur. State v. Birgans, supra; State v. Law rence, supra; State v. Khalfani, supra; State v. Pena, supra. When determining whether an investigatory stop was justified by reasonable suspicion, a reviewing court must consider the totality of the circumstances, giving deference to the inferences and deductions of a trained police officer. State v. Huntley, 97-0965 (La.3/13/98), 708 So.2d 1048. In stopping a vehicle on reasonable suspicion, an officer has the right to conduct a routine license and registration check and may engage in conversation with the driver and any passenger while doing so. State v. Lopez, 00-0562 (La.10/30/00), 772 So.2d 90; State v. Lawrence, supra; State v. Khalfani, supra.

If a police officer observes a traffic infraction, the subsequent stop for that offense is clearly legal; the standard is a purely objective one that does not take into account the subjective beliefs or expectations of the detaining officer. State v. Landry, 98-0188 (La.1/20/99), 729 So.2d 1019; State v. Stowe, 44,815 (La.App.2d Cir.10/28/09), 25 So.3d 945. This objective standard is indifferent to the relatively minor nature of a traffic violation. State v. Stowe, supra.

The particular traffic statute involved in this stop was La. R.S. 32:71(B), which provides in pertinent part:

(l)(a) Upon all multilane highways, no vehicle shall be driven in the left-hand lane except when directed otherwise, | ^preparing for a left turn at an intersection or private road or driveway, overtaking or passing another vehicle proceeding in the same direction, or when right-hand lanes are congested; however, no vehicle being driven in the left lane except when directed otherwise or preparing for a left turn at an intersection, private road, or driveway shall impede any other vehicle that is traveling in the same lane and behind that vehicle.
(b) Upon all multilane highways, no vehicle traveling in the left-hand lane shall be driven at a speed slower than any vehicle traveling to its right on the same roadway.
(c) Upon all multilane highways any vehicle proceeding at less than the normal speed of traffic at the time and place and under the circumstances then existing, shall be driven in the right-hand lane then available for traffic except when preparing for a left turn at an intersection or into a private road or driveway, or passing or overtaking a vehicle proceeding in the same direction, if passing on the left side of it. Nothing herein contained shall be construed to authorize driving any vehicle in the left lane so as to prohibit, impede, or block passage of an overtaking vehicle in such lane and in such event the vehicle in the left lane prohibiting, impeding, or blocking passage of an overtaking vehicle shall expeditiously merge into the right lane of traffic.

Regarding the temporary questioning of persons in public places, La.C.Cr.P. art. 215.1(D) provides:

During detention of an alleged violator of any provision of the motor vehicle laws of this state, an officer may not detain a motorist for a period of time longer than reasonably necessary to complete the investigation of the violation and issuance of a citation for the violation, absent reasonable suspicion of additional criminal activity.

(Emphasis added).

If the police officer has a specific suspicion of criminal activity, he may further detain the individual or the property while he diligently pursues a means of investigation likely to quickly confirm or dispel the particular suspicion. State v. Stowe, supra, citing United States v. Sharpe, supra. In order to further detain a suspect, however, the officer must have articulable facts giving rise to a reasonable suspicion of some separate illegal activity that Inwould justify further detention of the suspect. State v. Kalie, 96-2650 (La.9/19/97), 699 So.2d 879. In making that determination, the totality of the circumstances must be taken into account. Id. The circumstances must be judged by an objective standard such that the facts available to the officer at the moment of seizure or the search would warrant a man of reasonable caution in the belief that the action taken was appropriate. Id. There is no bright line rule for when a detention lasts too long and each instance must be assessed in view of the surrounding circumstances. State v. Arnold, 34,194 (La.App.2d Cir.12/06/00), 779 So.2d 840. Factors which may give rise to reasonable suspicion include the demeanor of the suspect and unlikely and inconsistent accounts regarding travels. State v. Miller, 00-1657 (La.10/26/01), 798 So.2d 947; State v. Kalie, supra; State v. Birgans, supra; State v. Lawrence, supra; State v. Pena, supra. The presence of an air freshener on a vehicle has also been considered a factor which may give rise to reasonable suspicion. State v. Thompson, 543 So.2d 1077 (La.App. 2d Cir.1989), writ denied, 551 So.2d 1335 (La.1989). Outstanding warrants and criminal records may also be considered in this inquiry. State v. Khalfani, supra; State v. Pena, supra.

The use of a drug dog as a means of investigation is one way to confirm or dispel the officer’s reasonable suspicion. State v. Kalie, supra, citing, United States v. Sharpe, supra. The dog’s sniff test of the vehicle’s exterior surfaces does not itself constitute a search. Id. However, at the moment the dog alerts to the interi- or of the vehicle, officers have probable cause to search the car. State v. Lopez, supra; State v. Kalie, supra. The Fourth Amendment |12aIlows police to search a vehicle absent a warrant if a car is readily mobile and probable cause exists to believe it contains contraband. State v. Lopez, supra; State v. Kalie, supra.

Regarding the initial traffic stop in this case, Sgt. Parker testified that he observed the vehicle traveling in the left-hand lane for approximately two miles at a speed anywhere from 10 to 15 miles per hour slower than the posted speed limit. He never observed the vehicle passing any traffic in the right-hand lane. Part of the time the vehicle was traveling in the left-hand lane, there were construction barricades lined up on the right shoulder of the road. He testified that after he had followed the vehicle for approximately one mile, he activated his dashboard camera to record the violation. The video depicts what appears to be a white Mercedes-Benz traveling in the left-hand lane of a multilane highway. As the video begins, there are no barricades on the right shoulder of the road, although they begin almost immediately thereafter. The video also shows that for at least 15 seconds after the barricades end, the vehicle failed to move into the right-hand lane of travel. Additionally, the video later revealed Sgt. Parker expressing his concerns regarding an erratic motion or weaving of the vehicle.

Under the facts, probable cause for a traffic violation under La. R.S. 32:71(B) existed, and Morris was ultimately ticketed for that violation. The caution barriers on the shoulder did not prevent the normal traffic flow in the right-hand lane of the interstate highway. Morris drove in the left-hand lane throughout a two-mile stretch, before and after the barriers, in violation of the statute. Moreover, objective reasonable suspicion of substandard driving |1sexisted by the slow speed and partial weaving which the officer observed. Thus, we find no merit in Lee’s argument that the traffic stop was unlawful in violation of the Fourth Amendment.

Lee argues, however, that Sgt. Parker did not have a basis for reasonable suspicion of additional criminal activity to justify the extended 35^10-minute detention, following the issuance of the traffic citation. The factors which Sgt. Parker identified, for his suspicion of possible drug courier activity were:

• The nervousness of Morris;

• The varying and incomplete accounts of the defendants’ trip to and from Texas;

• The varying accounts of Morris’s length of time in driving the vehicle;

• The multiple air fresheners in the vehicle;

• The ownership of the vehicle by a party who was not traveling with the defendants in the cross-country trip; and

• The prior criminal records of Morris and Smith involving illegal drugs.

These facts allowed a permissible shift in the trooper’s focus and were adequate to create a reasonable suspicion of separate illegal drug activity.

In detaining the occupants of the vehicle, the officer diligently pursued a means to investigate by calling for the K-9 unit that would likely dispel or confirm his suspicions. The trooper’s decision to call for the dog justified the extension of the duration of the stop. State v. Birgans, supra. While it took approximately 35-40 minutes for the drug dog to arrive, there is no indication that the delay was the result of any lack of diligence on the part of the investigating officers. Sgt. Parker testified that he communicated the refusal to consent immediately to another officer who then placed a call for the K-9 l^unit. Much of the delay was apparently caused by the transporting of the animal to the scene.

In State v. Miller, supra, the officer stopped the driver of a vehicle after observing her cross the right-hand fog lane of a highway. The officer stopped the driver for reasons of public safety with no intent to issue a citation. Nevertheless, the officer ran a routine license and registration check and conversed with the driver. The driver’s nervous demeanor and inconsistent explanations for her travels, as well as her presence in a car rented by a person with an arrest for possession of marijuana, were held to create reasonable suspicion in the officer sufficient to justify an extension of the original stop and the request for permission to search the vehicle. When the driver refused consent, the officer dispatched a drug dog which arrived on the scene some 34 minutes later. The stop, which approached an hour, was held by the court to be a lawful investigatory stop that “reasonably correlated with the escalating level of suspicion as the officers pursued a means of investigation likely to confirm or dispel the trooper’s suspicions without unnecessary delay.” In support of the holding, the per curiam opinion cited United States v. Owens, 167 F.3d 739 (1st Cir.1999) which upheld a 50-minute investigatory stop and United States v. McCarthy, 77 F.3d 522 (1st Cir.1996), which affirmed a 75-minute investigatory stop as reasonable.

Considering this jurisprudence and the totality of the circumstances involved in the present matter, we find no error in the trial court’s determination that the officers had a basis for reasonable suspicion of additional criminal activity and for extending the stop and maintaining the | lsstatus quo until the K-9 unit arrived to confirm or dispel the officer’s suspicions. Thus, this portion of Lee’s argument is without merit.

Finally, once the drug dog alerted on the vehicle, a fact unchallenged on appeal or during the motion to suppress, the officers had probable cause to search the vehicle without first obtaining a warrant. Lee’s reliance on Gant, supra in his final argument is misplaced in that the case limits the circumstances under which and the extent to which officers can search the passenger compartment of a vehicle incident to a lawful arrest. The warrantless search of the vehicle trunk in the instant case was based upon probable cause to suspect the presence of the narcotics provided by the trained drug dog’s open air alert and the exigent circumstances which arose from the detention of the vehicle on the open road. State v. Kalie, supra. This assignment is therefore without merit.

Conclusion

For the foregoing reasons, the denial of Lee’s motion to suppress is affirmed. The defendant’s conviction and sentence are affirmed.

AFFIRMED.

      . In accordance with State v. Crosby, 338 So.2d 584 (La.1976).


source: Caselaw Access Project

author: MOORE, J.

license: Public Domain

text:
    Patricia PORTER, Plaintiff-Appellant v. Michael B. PORTER, Defendant-Appellee.
    No. 46,754-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 14, 2011.
    Legal Services of N. LA, Inc., by David K. Handelman, Shreveport, LA, Marcus Patillo, Minden, LA, for Appellant.
    Michael B. Porter, In Proper Person.
    Before STEWART, PEATROSS and MOORE, JJ.
   MOORE, J.

|, Patricia Porter appeals a judgment that, condemned her, the successful litigant, to pay court costs in spite of the fact that she was previously granted pauper status. We reverse in part and render.

Procedural Background

Ms. Porter filed this petition for an Art. 103 divorce in Webster Parish in November 2010. She alleged that she and Mr. Porter had married in Houma, La., in 1984, their last matrimonial domicile was in Webster Parish, there were no children of the marriage, and they had separated on February 14, 2008, without reconciliation. She also filed a petition to proceed in forma pauperis, alleging that she was a homemaker who had not worked outside the home in 25 years, she was now 64 years old, her income (consisting solely of SSI and food stamps) was $612 a month, and her expenses were $710 a month. The district court signed the order granting her pauper status on November 16.

Mr. Porter, who now lives in Butler, Indiana, received long-arm service on November 29, 2010. He filed no pleading of any kind.

Ms. Porter obtained a preliminary default on February 15, 2011. She confirmed the default at a hearing on February 18. At the close of evidence, the district court stated, “There will be judgment as prayed for.” However, the clerk of court stated on the record, “Cost, your honor. A cost assessment for the pauper case.” The judge replied, “Right. If you’ll just stamp it there. All right, taken care of that. Thank you, ma’am.”

FThe court rendered a judgment that recited, “It is ordered, adjudged and decreed that there be judgment in favor of plaintiff, PATRICIA PORTER, decreeing a divorce a vinculo matrimony [sic] between her and the defendant, MICHAEL B. PORTER.” The judgment was silent as to costs. However, the clerk of court filed a “civil ledger report” showing that Ms. Porter had accrued costs of $219.54.

On February 24, 2011, the clerk of court filed a document entitled “Orders of Court” which recited, “It is ordered that court costs be paid by the petitioner.” This is signed by a deputy clerk of court, not by any judge.

Ms. Porter moved for a devolutive appeal, which the court granted on March 30, 2011. In mid-April, she filed another motion to proceed in forma pauperis in the district court. Her allegations were essentially the same as before, except that she listed a total income (SSI and food stamps) of $732 and expenses of $639.57. The district court signed this second order granting her pauper status on April 15.

Before the record was lodged with this court, the clerk of the district court filed another notice of costs, this time including appellate costs and demanding from Ms. Porter $568.20.

Ms. Porter’s Argument

Ms. Porter raises one issue: the court erred by ordering her to pay all court costs. She shows that she obtained two court orders granting her pauper status and she was the prevailing party who obtained a default judgment. She also shows that Mr. Porter never traversed her pauper status |Hand the court never revoked it. She cites La. C.C.P. art. 5186: “If judgment is rendered in favor of the indigent party, the party against whom the judgment is rendered shall be condemned to pay all costs[.]” She shows that this court and others have treated Art. 5186 as mandatory and reversed judgments that assessed court costs to pauper plaintiffs who prevailed at trial. Smith v. Smith, 543 So.2d 608 (La.App. 2 Cir.1989); Ford v. Ford, 2009-1494 (La.App. 4 Cir. 2/24/10), 32 So.3d 989; Stapleton v. Stapleton, 2005-1035 (La.App. 3 Cir. 2/1/06), 922 So.2d 1234. She asks the court to reverse the order that she pay court costs and to render judgment ordering Mr. Porter to pay them.

Mr. Porter’s appellate brief was due July 29, 2011, but as in the district court he has filed nothing.

Discussion

Except as otherwise provided by law, “the court may render judgment for costs, or any part thereof, against any party, as it may consider equitable.” La. C.C.P. art. 1920. Special statutes enumerate the expenses that may be taxed as costs. La. R.S. 13:4533, 13:3666. The trial court has great discretion in awarding costs. Aucoin v. Southern Quality Homes LLC, 2007-1014 (La.2/26/08), 984 So.2d 685; Curry v. Healthsouth North Rehabilitation Hosp.-Homer Campus, 46,015 (La.App. 2 Cir. 3/11/11), 58 So.3d 1143, writ denied, 2011-0749 (La.5/27/11), 63 So.3d 995.

When a party proceeds in forma pau-peris, La. C.C.P. art. 5186 provides a special rule for waiver of costs:

An account shall be kept of all costs incurred by a party who has been permitted to litigate without the payment of 14costs, by the public officers to whom these costs would be payable. If judgment is rendered in favor of the indigent party, the party against whom the judgment is rendered shall be condemned to pay all costs due such officers, who have a privilege on the judgment superior to the rights of the indigent party or his attorney. If judgment is rendered against the indigent plaintiff and he is condemned to pay court costs, an affidavit of the account by an officer to whom costs are due, recorded in the mortgage records, shall have the effect of a judgment for the payment due.

The discretion conferred by Art. 1920 is obviously limited in a pauper case by the more specific rule of Art. 5186, which mandates that costs be paid by the party against whom judgment is rendered. Curry v. Healthsouth North Rehabilitation Hosp.-Homer Campus, supra; Ulyanov v. Ulyanov, 2009-0642 (La.App. 4 Cir. 9/23/09), 23 So.3d 380. The district court committed legal error in assessing costs against Ms. Porter, the indigent party in whose favor judgment was rendered. Moreover, a default judgment is always rendered against the party who failed to answer the petition and citation. La. C.C.P. arts. 1701, 1702. The district court committed legal error in assessing costs against the party who took and confirmed the default. Ulyanov v. Ulyanov, supra.

We are sensitive to the position of the clerk of court, who is dealing with a defendant who has left the jurisdiction (moving over 900 miles away), never responded to the petition, citation or any legal notice, and is likely to be “judgment-proof’ for execution of costs. Nonetheless, the provisions of Art. 5186 are mandatory. Curry v. Healthsouth North Rehabilitation Hosp.-Homer Campus, supra; Smith v. Smith, supra. The district court, acting through its clerk of court, erred in ordering Ms. Porter to pay costs. This part of the judgment will be reversed.

| ¡¡Decree

For the reasons expressed, the portion of the judgment ordering Ms. Porter to pay court costs is reversed. Judgment is rendered ordering the defendant, Mr. Porter, to pay all trial and appellate costs.

REVERSED IN PART AND RENDERED.

      . Judge John Robinson signed this order.

      . Judge Parker Self presided over the confirmation of default.

      .Judge Ford Stinson signed this order.


author: MADELINE JASMINE, Judge Pro Tempore.

text:
    Charlen Hill WOMACK v. Eva Mae Cathcart STEPHENSON.
    No. 08-CA-493.
    Court of Appeal of Louisiana, Fifth Circuit.
    Jan. 13, 2009.
    Janet Moulton, Janet Moulton and Associates, Attorney at Law, Louisiana, for Plaintiff/Appellant.
    Richard R. Schulze, Mark J. Mansfield, Elena Perez, Dutel, Tranchina & Tomeny, L.L.C., Attorneys at Law, Metairie, Louisiana, for Defendant/Appellee.
    Panel composed of Judges EDWARD A. DUFRESNE, JR, GREG G. GUIDRY, and MADELINE JASMINE.
   MADELINE JASMINE, Judge Pro Tempore.

12PIaintiff, Charlen Hill Womack, appeals the trial court’s judgment dismissing her Petition of Interdiction regarding her mother, Eva Mae Cathcart Stephenson, the defendant. On appeal, plaintiff argues that the trial court erred in granting the judgment without allowing a hearing in which the parties could present evidence regarding Mrs. Stephenson’s condition, and also whether her interests were being protected under the durable power of attorney held by Scott Hill, Mrs. Stephenson’s son and plaintiffs brother. Plaintiff also argues that the trial court erred in ruling that a power of attorney “overruled” an interdiction proceeding.

FACTS AND PROCEDURAL HISTORY

On June 28, 2007, appellant and her daughter, Danielle Resseguet, filed a Petition for Interdiction asking that the trial court permanently interdict Mrs. Stephenson, and appoint her and her daughter as curator and undercurator, | ^respectively. Tracy Sheppard was appointed curator to represent Mrs. Stephenson in this litigation. The curator filed Exceptions on October 15, 2007, requesting that the trial court dismiss the Petition. Mr. Scott Hill intervened on October 25, 2007, averring that an interdiction was unnecessary because Mrs. Stephenson’s interests were being protected by less restrictive means than interdiction, namely two durable powers of attorney that Mrs. Stephenson executed in 2000.

Previously, on November 13, 2000, Mrs. Stephenson had executed a Conditional Procuration and Power of Attorney in favor of Mr. Hill, and a Medical Power of Attorney in favor of her husband, Warren C. Stephenson, and her son, Mr. Hill. Both powers of attorney were durable powers that would not be revoked by Mrs. Stephenson’s subsequent disability or capacity.

The trial for the Interdiction was set for February 12, 2008. On that date, the parties appeared and conducted a pre-trial conference. The parties agreed that Mrs. Stephenson had severe Alzheimer’s disease, and currently resided on a locked unit in a nursing home. The curator appeared. Counsel for both parties made legal argument. No sworn testimony was taken. Appellant’s counsel indicated that she wished to go forward with the interdiction proceeding, noting her position that this was necessary to address the alleged mismanagement of Mrs. Stephenson’s affairs After taking time to attend to other matters on the docket, the trial court returned to this matter and summarily ruled, finding that the case should be dismissed because the power of attorney existed.

^ANALYSIS

The appellant’s first Assignment of Error is that the trial court erred in finding that the existence of the procuration “trumps” the interdiction proceeding. We agree.

LSA-C.C. art. 389 concerns interdiction and states:

A court may order the full interdiction of a natural person of the age of majority, or an emancipated minor, who due to an infirmity, is unable consistently to make reasoned decisions regarding the care of his person and property, or to communicate those decisions, and whose interests cannot be protected by less restrictive means.

It is alleged that Scott Hill holds a conditional procuration executed by Mrs. Stephenson. LSA-C.C. art. 2987 provides:

A procuration is a unilateral juridical act by which a person, the principal, confers authority on another person, the representative, to represent the principal in legal relations.
The procuration may be addressed to the representative or to a person with whom the representative is authorized to represent the principal in legal relations.

LSA-C.C. art. 2989 provides that a procuration is subject to the rules governing mandate to the extent that the application of those rules is compatible with the nature of the procuration. Pertinent to this Assignment of Error, LSA-C.C. art. 3024 holds that both the mandate and the authority of the mandatary terminate upon the interdiction of the principal. The implication of this article is that merely because a person has issued a procuration or a contract of mandate does not mean that person can never subsequently be interdicted. Accordingly, we conclude that the existence of a procuration (or power of attorney) does not moot or “trump” an interdiction proceeding. See also Turk v. Conner, 03-791 (La.App. 5 Cir. 12/9/03), 864 So.2d 672 (mandatary had no power to act on behalf of the mandator where the mandator was subsequently placed under full interdiction).

[fiThe appellant next argues that the trial court erred in ruling before the parties were able to present evidence regarding Mrs. Stephenson’s infirmity and whether her interests can be protected by the less restrictive means of the procuration to Mr. Hill. We agree.

LSA-C.C. art. 389 contemplates the establishment of two preconditions before an interdiction may be ordered: A determination of the defendant’s inability to make reasoned decisions regarding the care of her person and property; AND a determination that her interests cannot be protected by less restrictive means. An example of “less restrictive means” are, among others, limited interdiction as per LSA-C.C. art. 390, and procurations.

The fact that a less restrictive means, the procuration, is in effect does not end the inquiry. Plaintiff alleges, in her Petition, that Mrs. Stephenson’s interests in her property are not, in fact, being protected under the procuration in favor of Mr. Hill. Plaintiff is entitled to a hearing to determine whether or not Mrs. Stephenson’s interests can be protected by the procuration in favor of Mr. Hill or whether more restrictive means are warranted. The trial court erred in ruling before an evidentiary hearing was held on this issue.

Accordingly, the judgment of the trial court is reversed, and the matter is remanded for proceedings consistent with this opinion.

REVERSED AND REMANDED.

      . Mr. Hill intervened in the suit, opposing the interdiction.

      . Mr. Stephenson died prior to this litigation.

      . Conditional procurations are defined by LSA-R.S. 9:3890.

      . The transcript reveals that the parties were in agreement regarding Mrs. Stephenson’s condition. They agreed that she suffers from Alzheimer’s disease and cannot presently make reasoned decisions regarding her person and property.


author: MARION F. EDWARDS, Judge.

text:
    STATE of Louisiana v. Eric WILLIAMS.
    No. 08-KA-556.
    Court of Appeal of Louisiana, Fifth Circuit.
    Jan. 13, 2009.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Assistant District Attorney, Twenty-Fourth Judicial District, Parish of Jefferson, State of Louisiana, Gretna, Louisiana, for Plaintiff/Appellee.
    Jane L. Beebe, Attorney at Law, Louisiana Appellate Project, New Orleans, Louisiana, for Defendant/Appellant.
    Panel composed of Judges MARION F. EDWARDS, CLARENCE E. McMANUS, and FREDERICKA HOMBERG WICKER.
   MARION F. EDWARDS, Judge.

| j>This is defendant-appellant Eric Williams’ (“Williams”) second appeal. This Court has previously affirmed his convictions for armed robbery, aggravated battery, and possession of a firearm while in possession of marijuana. The case was remanded for the trial court to consider Williams’ Motion to Reconsider Sentence. That motion was ultimately denied, and Williams now appeals his sentence.

The facts were delineated in our previous opinion. For purposes of the present appeal, it is sufficient to note the following: On April 13, 2002, a suspect, later identified as Williams, broke the front glass door of the Popeye’s on Lapalco Boulevard, and, as the manager, Teresa Levy, attempted to dial 911, flung the telephone, picked her up by her shirt, and threw her backwards against a wall. In the course of the robbery, he pointed a gun to the side of her head and told her he would kill her. She heard the gun click. The man flung Levy down in the service area and then told the other people in the restaurant to go to the back, chasing them as they did so. He grabbed the manager, struck her on the side of the head with the bottom of the gun, and the gun discharged. The manager sustained a fractured |sskull that required medical treatment. She testified that the man took approximately $3,200.

An investigation led to Williams’ residence. During a search, Williams emerged from one of the rooms and screamed at the detectives. A detective looked into that room and saw a handgun sitting on a shelf. When he entered the room, he saw a shotgun leaning against the wall, a large bag of marijuana, and money on the shelves.

A jury found Williams guilty as charged. The trial court sentenced him to imprisonment at hard labor for eighty-five years on Count 1 (armed robbery), ten years on Count 2 (aggravated battery), and ten years on Count 3 (possession of a firearm while in possession of marijuana), with all sentences to run consecutively for a total of 105 years, without benefit of parole, probation, or suspension of sentence on Count 1. The trial court also ordered Williams to pay a $1,000 fine in connection with Count 3.

Williams argues that his 105-year consecutive sentence is constitutionally excessive because he is a twenty-six-year-old first-time offender with no chance at rehabilitation; the trial judge failed to mention any of the mitigating factors, such as his admission to possessing guns and drugs at the time of his arrest and to being a drug abuser; and the trial judge ordered the sentences to run consecutively even though the armed robbery and aggravated battery were part of the same act or transaction.

At the sentencing hearing the trial court stated as follows:

The facts of this case were extreme. The Defendant used violence against the victim in this case. The Court, during the course of the trial, observed photographs of that. It was a brutal attack, it was a brutal crime, the type of crime that will not be tolerated by this Court and not be tolerated in Jefferson Parish.
My sentence is particularly tailored to the facts of this case, this Defendant’s actions, and I sentence him as follows ....

|4On our remand, the trial judge denied the Motion to Reconsider without providing Reasons, only stating that, “Upon review of the record and legal pleadings, this court concludes that the defendant is not entitled to reconsideration of sentence.”

The Eighth Amendment to the United States Constitution and Article I, § 20 of the Louisiana Constitution prohibit the imposition of excessive punishment. Although a sentence is within statutory limits, it can be reviewed for constitutional excessiveness. A sentence is considered excessive, even if it is within the statutory limits, if it is grossly disproportionate to the severity of the offense or imposes needless and purposeless pain and suffering. A sentence is grossly disproportionate if, when the crime and punishment are considered in light of the harm done to society, it shocks the sense of justice, recognizing at the same time the wide discretion afforded the trial judge in determining and imposing the sentence. Generally, maximum sentences are reserved for cases involving the most serious violations of the offense charged and the worst type of offender. In determining whether a sentence is excessive, the test imposed on the reviewing court is two-pronged. First, the record must show that the trial court took cognizance of the sentencing guidelines set forth in LSA-C.Cr.P. art. 894.1. The trial judge “shall state for the record the considerations taken into account and the factual basis therefore in imposing sentence.” LSA-C.Cr.P. art. 894.1(C). However, when the trial judge fails to articulate every circumstance listed in the | .¡sentencing guidelines, a remand is not necessary if there is an adequate factual basis for the sentence contained in the record.

Important elements that should be considered are the defendant’s personal history, prior criminal record, seriousness of the offense and the likelihood of rehabilitation.... Past criminal behavior that does not result in conviction is also a proper consideration at sentencing....
After determining whether the provisions of La.C.Cr.P. art. 894.1 have been complied with by the trial court, the reviewing court must then determine whether the sentence imposed is too severe given the circumstances of the case and the background of the defendant. ...

A reviewing court should also consider sentences imposed for similar crimes by the same court and other courts.

The penalty for armed robbery is imprisonment at hard labor for not less than ten years and for not more than ninety-nine years, without benefit of parole, probation, or suspension of sentence. LSA-R.S. 14:64(B). The penalty for aggravated battery is a fine of not more than $5,000, imprisonment with or without hard labor for not more than ten years, or both. LSA-R.S. 14:34. The penalty for possession of a firearm while in possession of marijuana is a fine of not more than $10,000 and imprisonment at hard labor for not less than five nor more than ten years without benefit of probation, parole, or suspension of sentence. LSA-R.S. 14:95(E). Therefore, Williams’ eight-five-year sentence on the armed robbery conviction was well in the upper range, and his ten-year sentences on the other two counts were the maximum he could have received.

Rln the instant case, Williams injured the manager of the Popeye’s during the armed robbery and his actions put the manager and the other individuals in the restaurant in danger of losing their lives.

Courts have upheld upper-end sentences for armed robbery convictions in factual situations where the defendants were first felony offenders and the victims were physically injured. In these cases, we note the victims were shot, more than one robbery was involved, and, in one case, a rape was perpetrated during the commission of the robbery. On the other hand, we have also applied the parameters of State v. Smith, supra, when considering whether a sentence for armed robbery is excessive. In Smith, the defendant brandished a gun and ordered everyone in the store to lie on the floor, fled, and then shot at their pursuers. The Louisiana Supreme Court stated that sentences of thirty-five to fifty years have been found to be acceptable for first offenders convicted of armed robbery, the trial judge did a thorough job of reviewing the aggravating and mitigating factors, and the fifty-year sentence was within the acceptable range. In State v. Armstead, supra, we held that the fifty-year sentence imposed, although at the upper end, was within the thirty-five to fifty-year range of Smith. Although we are not constrained by the guidelines of Smith, we have routinely applied it in other armed robbery cases when determining excessiveness.

Here, we must determine whether the sentence imposed is too severe given the circumstances of the case and the background of Williams. In the present case, the trial court, stating it was tailoring the sentence to the facts of the case, found 17simply that Williams used violence and that it was a brutal attack without discussing aggravating and mitigating factors. Williams had no prior criminal history, and the likelihood of rehabilitation was not addressed. There was no pre-sentence investigation, but the record on appeal shows that Williams was in possession of both marijuana and a gun when he was arrested. Regarding his background, the record only shows that Williams had been in special education but did not complete high school and that he was unemployed following an accident but had been a laborer.

The appellate court shall not set aside a sentence for excessiveness if the record supports the sentence imposed. LSA-C.O.P. art. 881.4(D). Neither the record nor the reasons given by the trial court reveal that Williams is among the most egregious offenders of the crime of armed robbery so as to merit an eight-five-year sentence for armed robbery and, thus, the sentence is disproportionate and the trial court abused its discretion in imposing it.

In our determination, we do not minimize the injuries suffered by the manager or the manner in which they were inflicted. Rather, we find that considering all the enumerated factors and on the record before us, this case is one in which the sentencing range of Smith, supra, is more appropriate. Therefore, we vacate the sentence for armed robbery and remand the matter to the trial court for resentenc-ing in accordance with this opinion.

As Williams’ brief admits, the extreme nature of the robbery was the aggravated battery for which Williams was also separately charged and convicted. This Court has generally upheld maximum sentences for aggravated battery convictions even though the offenders had no prior convictions, depending on the circumstances of the attack. Although Williams was given the maximum sentence for the aggravated battery of Ms. Levy, the ten-year sentence is proportional to the | ¡¡severity of that offense in light of the injuries to the victim. Even a mid-range sentence for armed robbery does not preclude the valid imposition of the maximum sentence for an aggravated battery committed during such robbery. Here, the record supports the sentence imposed, and we find no abuse of discretion in that sentence.

Williams also received a ten-year sentence for his possession of a firearm while in possession of marijuana. To the extent that he argues this sentence was excessive, we note that the trial court did not impose the maximum fine of $10,000. Further, at the time the gun and drugs were discovered, Williams shared the home with his mother and sister and sometimes shared a room with his sister. The arresting officers testified that, when Williams came out of the bedroom screaming at them, his behavior was such that they were concerned for their own safety. After considering the facts of this case, we find the record supports the sentence and see no abuse of the trial court’s discretion.

Williams also argues that the trial court erred in imposing consecutive rather than concurrent sentences on the armed robbery and aggravated battery convictions. He cites LSA-C.Cr.P. art. 883:

If the defendant is convicted of two or more offenses based on the same act or transaction, or constituting parts of a common scheme or plan, the terms of imprisonment shall be served concurrently unless the court expressly directs that some or all be served consecutively. Other sentences of imprisonment shall be served consecutively unless the court expressly directs that some or all of them be served concurrently. In the case of the concurrent sentence, the judge shall specify, and the court minutes shall reflect, the date from which the sentences are to run concurrently.

Here, the robbery and battery were part of the same transaction and, thus, there is a presumption in favor of concurrent sentences. Nonetheless, a trial judge [ nretains discretion to impose consecutive sentences on the basis of factors such as the offender’s past criminal acts, the violent nature of the charged offenses, or the risk that the defendant may pose to the safety of the community. If the trial court elects to impose consecutive sentences for crimes arising from a single course of conduct, it must articulate the reasons it feels the sentence is necessary. Although the imposition of consecutive sentences requires particular justification when the crimes arise from a single course of conduct, consecutive sentences are not necessarily excessive.

We do note that LSA-C.Cr.P. art. 883 does not specifically require the trial court state reasons justifying the imposition of a consecutive sentence when the crimes arise out of a single course of conduct. Rather, the history of the jurisprudence reveals that the requirement for articulating specific reasons for imposing a consecutive sentence is based on LSA-C.Cr.P. art. 894.1, which requires a sentencing court to “state for the record the considerations taken into account and the factual basis therefore in imposing sentence.” ... Over time, the Louisiana Supreme Court has found that the failure to articulate reasons for sentence pursuant to Article 894.1 does not require a remand when the sentence imposed is not “apparently severe” and there is an adequate factual basis for the sentence contained in the record.... Therefore, it logically follows that the failure to articulate specific reasons for imposing a consecutive sentence also does not require a remand if the record provides an adequate factual basis to support a consecutive sentence.

We find there is an adequate factual basis in the record for the imposition of consecutive sentences. As noted above, Williams exhibited violent behavior toward Ms. Levy, and her injuries were severe, although not life-threatening. The trial court, therefore, did not err in imposing consecutive sentences.

| 1(1For the foregoing reasons, Williams’ eighty-five-year sentence is vacated, and the matter is remanded for resentencing in accordance with this opinion. In all other respects, the sentences are affirmed.

SENTENCE VACATED IN PART AND REMANDED; SENTENCE AFFIRMED IN PART.

      . State v. Williams, 04-1309 (La.App. 5 Cir. 4/26/05), 902 So.2d 485, writs denied, 05-1640 (La.2/3/06), 922 So.2d 1173 and 05-1640 (La.2/3/06), 924 So.2d 144.

      . State v. Smith, 01-2574 (La. 1/14/03), 839 So.2d 1.

      . Id.; State v. Armstead, 07-741 (La.App. 5 Cir. 2/6/08), 980 So.2d 20.

      . State v. Armstead, supra.

      . State v. Quebedeaux, 424 So.2d 1009, 1014 (La.1982), aff'd on remand, 446 So.2d 1210 (La.1984); State v. Sullivan, 02-35 (La.App. 5 Cir. 4/30/02), 817 So.2d 335, 341.

      . State v. Perrilloux, 03-0917 (La.App. 5 Cir. 12/30/03), 864 So.2d 843, writ denied, 2004-0418 (La.6/25/04), 876 So.2d 830 (citing State v. Lobato, 603 So.2d 739, 751 (La.1992)).

      . Id.

      . Id. (citations omitted).

      . See, State v. Hawkins, 06-739, p. 23 (La.App. 5 Cir. 9/25/07), 968 So.2d 1082, 1096, writ denied, 07-2272 (La.4/18/08), 978 So.2d 347; State v. Tracy, 02-0227 (La.App. 5 Cir. 10/29/02), 831 So.2d 503, 516, writ denied, 02-2900 (La.4/4/03), 840 So.2d 1213.

      . See, State v. Sanborn, 02-257 (La.App. 5 Cir. 10/16/02), 831 So.2d 320, writ denied, 02-3130 (La.9/26/03), 854 So.2d 346; State v. Palmer, 00-0216 (La.App. 1 Cir. 12/22/00), 775 So.2d 1231, writs denied, 01-0211 (La. 1/11/02), 807 So.2d 224 and 01-1043 (La.1/11/02), 807 So.2d 229; State v. Styles, 96-897 (La.App. 5 Cir. 3/25/97), 692 So.2d 1222.

      . State v. Smith, supra (citing State v. Augustine, 555 So.2d 1331 (La.1990) and State v. Thomas, 98-1144 (La.10/9/98), 719 So.2d 49).

      . State v. Alexander, 03-1291 (La.App. 5 Cir. 3/30/04), 871 So.2d 483, 491, writ denied, 04-1063 (La. 10/1/04), 883 So.2d 1007; State v. Hartwell, 03-1214 (La.App. 5 Cir. 1/27/04), 866 So.2d 899, writ denied, 2004-0448 (La.6/25/04), 876 So.2d 832; State v. Ragas, 07-3 (La.App. 5 Cir. 5/15/07), 960 So.2d 266, writ denied, 2007-1440 (La.1/7/08), 973 So.2d 732.

      . Contrast, State v. Styles, supra; State v. Palmer, supra; State v. Sanborn, supra.

      . See, e.g., State v. Allen, 40,972 (La.App. 2 Cir. 5/17/06), 930 So.2d 1122; State v. Smith, 41,544 (La.App. 2 Cir. 11/1/06), 942 So.2d 618, writ denied 2006-3015 (La. 10/5/07) 964 So.2d 379.

      . See, State v. Taylor, 98-603 (La.App. 5 Cir. 3/10/99), 733 So.2d 77.

        . State v. Bradley, 02-1130 (La.App. 5 Cir. 3/11/03), 844 So.2d 115, writ denied, 2001-1973 (La.6/14/02), 817 So.2d 1151.

      . Id.

      . Id. at 118 (citations omitted).


author: WALTER J. ROTHSCHILD, Judge.

text:
    PARISH OF ST. CHARLES through the DEPARTMENT OF PLANNING AND ZONING v. Wanda Fontenot, Wife of and Douglas E. BORDELON and Southern Crane Services, Inc.
    No. 08-CA-611.
    Court of Appeal of Louisiana, Fifth Circuit.
    Jan. 13, 2009.
    Leon C. Vial, III, Director of Legal Services, Hahnville, LA, for Plaintiff/Appellant.
    Panel composed of Judges SUSAN M. CHEHARDY, WALTER J. ROTHSCHILD, and FREDERICKA HOMBERG WICKER.
   WALTER J. ROTHSCHILD, Judge.

|2The Parish of St. Charles appeals from a ruling of the trial court granting plaintiffs’ exception of prescription. Plaintiffs filed a motion to dismiss this appeal on the basis that it did not constitute a final judgment. This motion was referred to the merits by this Court on October 27, 2008. For the reasons stated herein, we vacate the trial court’s ruling and remand the case for further proceedings.

Motion to Dismiss

In its motion to dismiss this appeal, defendants contend that the trial court’s ruling does not constitute a final, appealable judgment as the exception was sustained to less than all of plaintiffs claims asserted in their petition. Rather, defendants contend the ruling is a partial judgment and absent a specific designation by the trial court that it is appealable, plaintiffs correct remedy was by way of supervisory writ. La. C.C.P. art. 1915(B). Even so, this court has the discretion to convert an appeal to an application for supervisory writs. Cole v. Cole, 07-504 (La.App. 5 Cir. 10/30/07), 971 So.2d 1185, 1188; Stelluto v. Stelluto, 914 So.2d 34, 39 (La.2005); In re Medical Review Panel of Tammy Mineo Freed, 902 So.2d 472 (La.App. 5 Cir. 4/26/05). In this instance we exercise that discretion.

Facts and Procedural History

On October 30, 2007, the Parish of St. Charles through the Department of Planning and Zoning filed in the instant petition against property owners Wanda Fontenot and Douglas Bordelon seeking enforcement of various parish ordinances based on defendants’ non-compliance. Specifically, in Paragraph 4 of the petition, the Parish alleged:

Defendants’, Wanda Fontenot wife of/ and Douglas E. Bordelon, property contains tall, grass and weeds, abandoned, junked, wrecked and/or derelict vehicles, vehicle parts, trash, debris, un-permitted tractor/trailer containers, industrial/derelict equipment, parts, and other noncompliance items which further brings it out of compliance with the St. Charles Parish Code of Ordinances. Defendants are also operating a business, known as Southern Crane Services, Inc., in a residential zoning district. All of these conditions exist on the aforementioned property. Said conditions are in violation of the St. Charles Parish Code of Ordinances.

Defendants responded to this petition with exceptions of liberative prescription, arguing that plaintiffs claims asserted in Paragraph 4 of the petition have prescribed pursuant to La. R.S. 9:5625. Defendants argued that the Parish had written notice of the alleged violations as early as April of 1996 and pursuant to state statute requiring suit to be filed within five years of the violation, the claims have prescribed.

The trial court agreed with this argument and rendered judgment granting the exceptions of prescription and dismissing plaintiffs claims.

Law and Discussion

In determining whether prescription has accrued in a zoning enforcement case, the burden of proof is upon the person pleading ^prescription. City of New Orleans v. Elms, 566 So.2d 626, 633, 634 (La.1990). However, once that is shown, the burden switches to the party pleading termination of the non-conforming use status by abandonment or discontinuance. Id. at 634; Parish of Jefferson v. Jacobs, 623 So.2d 1371, 1373-1374 (La.App. 5 Cir.1993).

The state statute applicable to this cause of action is La. R.S. 9:5625(A)(3) which provides as follows:

(3) With reference to violations of use regulations all such actions, civil or criminal, except those actions created for the purpose of amortization of nonconforming signs and billboards in conformity with the provisions of R.S. 33:4722, must be brought within five years from the date the parish, municipality, and the properly authorized instrumentality or agency thereof if such agency has been designated, first had been actually notified in writing of such violation.

There is generally no dispute in this case that the Parish received written notice of the violations referred to in the petition. In support of its exception, defendants submitted documentation indicating the Parish received written notice in 1996 and 1999 regarding the abandoned or junk vehicles and that defendants were operating a business in a residential district. However, the Parish argues that the prescriptive statute does not apply to the instant case because the allegations of its petition indicate the violations were ongoing and not subject to prescription, relying on St. Charles Parish Zoning Ordinances, Appendix A, Section 12A, which provides as follows:

Section XII. Violation and penalty.
A. Violation: In case any building or structure is erected, structurally altered, or maintained, or any building, structure, or land is used in violation of this Ordinance, any proper officials of the Parish of St. Charles, Louisiana, or their duly authorized representatives, in addition to other remedies, may institute any appropriate action or proceedings to prevent such unlawful erection, structural alteration, maintenance, use, or other violations, to restrain, correct, or abate such violation, to prevent the | r,occupancy of such building, structure, or land, or to prevent any illegal act, conduct, business, or use in or about such premises. Each day such violation continues shall constitute a separate violation. The Zoning Administrator may call upon the Sheriff to furnish him with the necessary police personnel to carry out his orders.

Although the Parish asserted this defense to the prescription claim in the court below, the trial court failed to find that this provision applied when the Parish received written notice of the violation as is the case here. In its reasons for judgment, the trial court stated:

Once written notice is received, prescription is controlled by La. R.S. 9:6525(A)(3) [sic], and the party must bring an action within five years of that notice. While the Parish is at liberty to determine what constitutes a violation of its own ordinances, it can not override the dictates of the Louisiana legislature regarding prescription of such violation.

On appeal, the Parish relies on two cases from the Third Circuit wherein the court refused to apply this prescriptive statute where the facts indicated prescription began anew each day there was a violation. In Lafayette City-Parish Consol. Government v. Fitch, 03-377 (La.App. 3 Cir. 10/1/03), 856 So.2d 1276, 1284, the Lafayette City-Parish Consolidated Government brought an enforcement action against the defendant property owners asserting violations of an ordinance related to the operation of salvage yards. The property owners asserted an exception of prescription based on La. R.S. 9:5625 which was denied by the trial court and affirmed by the appellate due to the continuing nature of the violations. In finding the City claims had not prescribed, the court stated:

It is correct that the evidence reveals the City’s longstanding knowledge of the condition of the fence. The record contains citizen complaints, indication of criminal prosecutions, and substantial evidence of the City’s continued negotiations with Mr. Fitch regarding | r,compliance with the Ordinances. Although there is evidence of knowledge of past violations, the suit alleges ongoing, daily violations. While the early conduct from 1994 and 1995 may be relevant to the factual background of the City’s case, the current violations are the City’s focus. The question of whether a petition could be maintained for early violations is not before the court. Rather, the record supports the view that the City is alleging ongoing, daily infractions under the current ordinance.

Further, in Lafayette City Parish Consolidated Government v. Dien’s Auto Salvage, Inc., 05-201 (La.App. 3 Cir. 11/02/05), 916 So.2d 384, 394, a case factually similar to Fitch, the court again declined to find the City’s suit based on violations of ordinances had prescribed although the requisite time period in the statute had expired prior to filing of the suit. Rather, the Court stated:

However, where the Defendants did not construct a fence enclosure or argue that they came anywhere near substantial compliance with the 1997 or 1998 Ordinance, every day that Defendants do not build a fence is a new and separate violation of the fence enclosure provisions. Essentially, prescription begins anew with regard to the non-existent fence enclosure.
Id., 916 So.2d at 393.

Likewise, in the instant case, the Parish alleged in its petition that the violations of the ordinances cited therein were continual and ongoing. Although the state statute is silent as to the continuing and ongoing nature of the violation, the parish ordinance specifically provides when the violation is continual, prescription begins anew. There is no indication that a conflict exists between the state legislation and the parish ordinance, nor can we find that the state statute and the ordinance are incompatible and cannot be effectuated in harmony. Rather, while we acknowledge that the state enacted general legislation governing this area, we fail to find that the local governmental entity is automatically precluded from acting in that same area. We find that the parish ordinance regarding the |7effect of a continual violation on the time to commence suit is applicable herein, and we conclude that the trial court erred in concluding otherwise.

Accordingly, after review of the record herein and the applicable law, we find that the exceptions of prescription brought by defendants in this case were erroneously sustained. Rather, as the Parish’s petition alleges that the violations of ordinances existed at the time of the filing of the petition, such claims cannot be prescribed. We therefore vacate the trial court’s ruling in this matter granting the exceptions of prescription and remand the case to the trial court for further proceedings consistent with this opinion.

APPEAL CONVERTED TO SUPERVISORY WRIT; RULING VACATED AND REMANDED.

WICKER, J., Dissents with reasons.

hi respectfully dissent. In my view, La.R.S. 9:5625 governs and the trial judge properly sustained the Parish’s exception of prescription insofar as the alleged use violations.

La.R.S. 9:5625(A)(1) and (3) provides:

A. (1) All actions civil or criminal, created by statute, ordinance, or otherwise, except those actions created for the purpose of amortization of nonconforming signs and billboards enacted in conformity with the provisions of R.S. 33:4722, which may be brought by parishes, municipalities, or their instrumentalities or by any person, firm, or corporation to require enforcement of and compliance with any zoning restriction, building restriction, or subdivision regulation, imposed by any parish, municipality, or an instrumentality thereof, and based upon the violation by any person, firm, or corporation of such restriction or regulation, must be brought within five years from the first act constituting the commission of the violation.
(3) With reference to violations of use regulations all such actions, civil or criminal, except those actions created for the purpose of amortization of nonconforming signs and billboards in conformity with the provisions of R.S. 33:4722, must be brought within five years from the date the parish, municipality, and the properly authorized instrumentality or agency thereof if such agency has been designated, first had been actually notified in writing of such violation.

According to R.S. 9:5625, a claim to enforce a zoning violation must be brought within five years from the first act constituting the commission of the violation. However, if the violation in question is a violation of use regulations, the action must be brought within five years from the date the |2parish, municipality or their properly authorized instrumentality or agency first had been notified in writing of such a violation. After the five-year prescription has accrued, the particular property thereafter “shall enjoy the same legal status as land uses ... made nonconforming by” other provisions of the zoning ordinance. R.S. 9:5625(B).

At the hearing below, the defendants introduced evidence that the Parish had written notice of the alleged violations on August 19, 1999. The Parish contends that prescription has not run because it runs anew with each violation as provided in Appendix A, Section 12A, which pertinently provides: “Each day such violation continues shall constitute a separate violation.”

The trial judge concluded that R.S.9:5625 governed and the claims were prescribed. He relied on R.S.9:5625(E), which provides: “The provisions of this Section shall supersede any other provisions of law inconsistent herewith.”

The majority concludes that Lafayette City Parish Consolidated Government v. Dien’s Auto Salvage, Inc., 05-201 (La.App. 3 Cir. 11/2/05), 916 So.2d 384 and Lafayette City-Parish Consol. Government v. Fitch, 03-377 (La.App. 3 Cir. 10/1/03), 856 So.2d 1276, cert. granted in part on other grounds, 03-3352 (La.3/19/04), 869 So.2d 783 control. I disagree. In my view, these cases are distinguishable.

In both cases involving similar facts, the Third Circuit found that the City-Parish’s abatement action to enforce an ordinance imposing stringent fencing requirements on salvage yards was not prescribed. The ordinance provided that ongoing daily violations constituted new offenses, and the owners had never complied with the fencing ordinance. The court concluded that the violations were ongoing and the five-year prescriptive | ^period began anew each day a violation continued. Lafayette City-Parish Consol. Government v. Fitch, 03-377 at 11-12, 856 So.2d at 1284; Lafayette City Parish Consolidated Government v. Dien’s Auto Salvage, Inc., 05-201 at 15-16, 916 So.2d at 394-95.

In its more recent case of Lafayette City Parish Consolidated Government v. Dien’s Auto Salvage, Inc., the court noted, however, that although the “anew” language in the ordinance seemed to be in conflict with the “first act” requirement of prescription article La.R.S. 9:5625, there was no conflict in that case. 05-201 at 12, 916 So.2d at 393. The court explained:

For example, if Defendants had constructed a fence enclosure in substantial compliance with 0-363-97, sometime after the effective date of December 1, 1998, but painted it red, the City Parish could not wait five years and a day to bring an action for abatement based upon the color of the fence being out of compliance. The City-Parish would have to bring their action to remedy the problem within the five-year prescriptive period of La.R.S. 9:5625, or by December 1, 2008. However, where the Defendants did not construct a fence enclosure or argue that they came anywhere near substantial compliance with the 1997 or 1998 Ordinance, every day that Defendants do not build a fence is a new and separate violation of the fence enclosure provisions. Essentially, prescription begins anew with regard to the non-existent fence enclosure.

Id., 05-201 at 12-13, 916 So.2d at 393.

In the present case, the defendants, unlike those in the Third Circuit cases, did not allegedly violate an ordinance that required them to comply with building in a certain manner. Instead, they allegedly violated an ordinance that prohibited them from operating a business in the manner described.

Therefore, under these factual circumstances, R.S.9:5625 supersedes the inconsistent Parish ordinance. R.S.9:5625(E). And under the clear |4wording of R.S.9:5625, the Parish’s action insofar as use violations has prescribed.

Accordingly, I would affirm the judgment sustaining the exception of prescription.


author: SUSAN M. CHEHARDY, Judge.

text:
    Elodie Christensen ZIIFLE v. BRAE ASSET FUND, L.P.
    No. 08-CA-646.
    Court of Appeal of Louisiana, Fifth Circuit.
    Jan. 13, 2009.
    Wiley J. Beevers, Raylyn R. Beevers, Steven M. Materer, Michael F. Somoza, Attorneys at Law, Gretna, LA, for Appellant, Elodie Christensen Ziifle.
    Mark C. Landry, Attorney at Law, Me-tairie, LA, for Appellee, Brae Asset Fund, L.P.
    Panel composed of Judges MARION F. EDWARDS, SUSAN M. CHEHARDY, and WALTER J. ROTHSCHILD.
   SUSAN M. CHEHARDY, Judge.

|2In 1990, the Federal Deposit Insurance Company(“F.D.I.C.”) filed a lawsuit in federal court against Tim Tyler Ziifle, and his wife, Diane Reed Ziifle, to enforce payment of the debts, which they had personally guaranteed, for Silent Partner Body Armor, Inc. On March 19, 1991, Mr. and Mrs. Tim Ziifle entered into a consent judgment, in favor of F.D.I.C., for $227,820.00 with accrued interest of $36,616.58, plus subsequently accruing interest. That judgment was later assigned to Quantum Varde Asset Fund, L.L.P.(“Quantum”).

On February 25, 1993, the Ziifles granted a mortgage on their immovable property to secure a note, payable to bearer, on demand, in the principal amount of $90,000.00, with interest at the rate of 8% per annum. The mortgage was recorded on March 2, 1993, at MOB 3570, folio 240. The bearer of that note and holder of the mortgage is Elodie C. Ziifle, Mr. Ziifle’s mother.

On February 16, 2001, Quantum filed suit in federal court to revive the consent judgment. On February 23, 2001, Quantum recorded a certified copy of the original consent judgment in the mortgage records of Jefferson Parish at MOB 3991, folio 145.

On March 3, 2001, Quantum recorded a Notice of Lis Pendens and Reinscription of Judgment in the mortgage records of Jefferson Parish at MOB R3992, folio 302. During the pendency of the revival litigation, on November 1, 2001, Quantum transferred the judgment to Brae Asset Fund. The final judgment reviving the consent judgment was rendered and recorded in the mortgage records of Jefferson Parish on October 25, 2002, at MOB 4089, folio 47.

On July 6, 2007, Ms. Ziifle brought this proceeding, as a rule to rank, claiming that the district court should rank her mortgage as superior to the judgment owned by Brae. Brae filed Exceptions of Improper Use of Summary Proceedings and Non-joinder of Necessary Parties.

At the August 27, 2007 hearing, the parties agreed that the exceptions should be argued and decided before the trial on the merits. That day, the parties argued the exceptions. The trial court took the matter under advisement.

On November 12, 2007, the trial court issued judgment denying the exceptions and granting the rule to rank in favor of Brae Asset Fund. Mrs. Ziifle moved for a new trial, which was denied. Mrs. Ziifle, thereafter, perfected this devolutive appeal, seeking review of the original judgment, and the judgment denying the motion for a new trial. For the following reasons, we grant a new trial and remand for further proceedings.

Here, both parties concede that they did not argue or introduce evidence on the merits of Mrs. Ziifle’s Rule to Rank at the August 27, 2007 hearing. As provided in La. C.C.P. art. 1972(1), a new trial shall be granted, upon contradictory motion, where the verdict or judgment is contrary to the law and evidence. Although the statutory language mandates the granting of a new trial if the trial court finds the verdict is contrary to the law and evidence, the jurisprudence interpreting this provision recognizes the trial judge’s discretion in making that determination. “Whether to grant a new trial requires a discretionary balancing of many factors.” Davis v. Wal-Mart Stores, Inc., 00-0445 (La.11/28/00), 774 So.2d 84 (citing Gibson v. Bossier City General Hospital, 594 So.2d 1382 (La.App. 2 Cir.1991)).

An appellate court has the authority to determine whether a trial judge abused his discretion in not granting a new trial. Lamb v. Lamb, 430 So.2d 51, 53 (La.1983); Garrett v. Universal Underwriters, 586 So.2d 727 (La.App. 3rd Cir.1991). See also La. C.C.P. art. 1971, comment (d)(“Although the trial court has much discretion regarding applications for new trial, ... the appellate court will not hesitate to set the trial court’s ruling aside, or grant a new trial when timely applied for ... in a case of manifest abuse”).

In this case, Mrs. Ziifle argues that the denial of her motion for new trial improperly prohibited her from introducing evidence on the merits of the underlying matter. We agree. The transcript of the hearing on the exceptions reveals that both parties agreed that the exceptions had to be heard before the merits of the case, which was scheduled for trial at a later date. More importantly, neither party submitted argument or evidence regarding the underlying Rule to Rank. We cannot see a clearer case of the verdict being contrary to the evidence than when no evidence has been introduced on the merits of the claim. After reviewing the record, such as it is, we find that the appellant, Ms. Ziifle, has demonstrated that the trial judge’s denial of her motion for new trial was an abuse of discretion, de la Vergne v. de Lamaze, (La.App. 4 Cir. 2/29/96), 670 So.2d 599, 602-603.

Moreover, after conducting an independent review of the record, we conclude that the appellate record in this case should not have been supplemented with evidence that was never introduced in the trial court. Accordingly, we recall our order of August 28, 2008, as improvidently granted. That evidence that was added to the record shall be removed by order of this Court. In conclusion, we 15amend the appellate record, grant appellant’s motion for new trial, and remand for further proceedings.

JUDGMENT REVERSED; NEW TRIAL GRANTED.


text:
    STATE of Louisiana v. Travis L. WALKER.
    No. 08-KA-563.
    Court of Appeal of Louisiana, Fifth Circuit.
    Jan. 13, 2009.

      Paul D. Connick, Jr., District Attorney, 24th Judicial District, Parish of Jefferson, State of Louisiana, Terry M. Boudreaux, Assistant District Attorney, Gretna, LA, for Plaintiff/Appellee, State of Louisiana.
    Gwendolyn K Brown, Louisiana Appellate Project, Baton Rouge, LA, for Defendant/Appellant, Travis L. Walker.
    Panel composed of Judges MARION F. EDWARDS, SUSAN M. CHEHARDY, and GREG G. GUIDRY.
   SUSAN M. CHEHARDY, Judge.

12Travis L. Walker appeals his conviction and sentence on a charge of third-offense possession of marijuana. We affirm the conviction, but vacate the sentence and remand for resentencing.

On January 6, 2006, the Jefferson Parish District Attorney filed a bill of information charging Travis L. Walker with violation of La.R.S. 14:95.1, possession of a firearm by a convicted felon (Count 1), and violation of La.R.S. 40:966, possession of marijuana, third offense (Count 2). At arraignment on February 22, 2006, the defendant pleaded not guilty to both charges.

The defendant filed various pretrial motions, including various motions to suppress, but the record does not indicate the court ever ruled on them.

On April 3, 2008, the defendant underwent a jury trial on the charge of possession of a firearm by a convicted felon. The twelve-member jury found the defendant not guilty. On the same day, the defendant pleaded guilty as charged to Count 2, third offense possession of marijuana. Pursuant to a plea agreement, the trial court sentenced the defendant to two years at hard labor, to be served in home incarceration with “ATI.”

|3On May 5, 2008, the defendant filed a timely pro se motion for appeal, which was granted on May 15, 2008.

FACTS

Because the defendant pleaded guilty to Count 2 and the trial court never ruled on the pretrial motions, the facts regarding the offense must be drawn from the bill of information. Count 2 of the bill of information alleged that on or about January 7, 2005, the defendant violated R.S. 40:966(C) (third offense) “in that he did knowingly and intentionally possess a controlled dangerous substance to wit: Marijuana, having been previously convicted of possession of Marijuana in the 24th Judicial District Court, Parish of Jefferson, case numbers 02-6025 and 03-0034.”

ANDERS BRIEF

Following the procedure set forth in State v. Benjamin, 573 So.2d 528, 530 (La.App. 4 Cir.1990), appointed appellate counsel has filed a brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967) and State v. Jyles, 96-2669, p. 3 (La.12/12/97), 704 So.2d 241, 242 (per curiam). The brief asserts that counsel has thoroughly reviewed the trial court record and cannot find any non-frivolous issues to raise on appeal. Appointed counsel therefore requests leave to withdraw as counsel of record.

The State agrees there are no non-frivolous issues to raise on appeal.

In Anders, the United States Supreme Court stated that a defendant’s appointed appellate counsel may request permission to -withdraw if he finds his case to be wholly frivolous after a conscientious examination of the record. The request must be accompanied by ‘“a brief referring to anything in the record that might arguably support the appeal”’ so as to provide the reviewing court “with a 14basis for determining whether appointed counsel have fully performed their duty to support their clients’ appeals to the best of their ability” and to assist the reviewing court “in making the critical determination whether the appeal is indeed so frivolous that counsel should be permitted to withdraw.” McCoy v. Court of Appeals of Wisconsin, Dist. 1, 486 U.S. 429, 439, 108 S.Ct. 1895, 1902, 100 L.Ed.2d 440 (1988).

In State v. Jyles, 96-2669 at 2, 704 So.2d at 241, the Louisiana Supreme Court stated that an Anders brief need not tediously catalog every meritless pretrial motion or objection made at trial with a detailed explanation of why the motions or objections lack merit. The supreme court explained that an Anders brief must demonstrate by full discussion and analysis that appellate counsel “has cast an advocate’s eye over the trial record and considered whether any ruling made by the trial court, subject to the contemporaneous objection rule, had a significant, adverse impact on shaping the evidence presented to the jury for its consideration.” State v. Jyles, supra.

When conducting a review for compliance with Anders, the appellate court must conduct an independent review of the record to determine whether the appeal is wholly frivolous. State v. Bradford, 95-929, p. 4 (La.App. 5 Cir. 6/25/96), 676 So.2d 1108, 1110. If, after an independent review, the reviewing court determines there are no non-frivolous issues for appeal, it may grant counsel’s motion to withdraw and affirm the defendant’s conviction and sentence. If the court finds any legal point arguable on the merits, however, it may deny the motion and order the court-appointed attorney to file a brief arguing the legal point(s) identified by the court, or grant the motion and appoint substitute appellant counsel. Id.

|sThe defendant’s appellate counsel asserts that after a detailed review of the record, she found no non-frivolous issues to raise on appeal. Counsel points out the defendant waived all non-jurisdictional defects by pleading guilty, and waived his pre-trial suppression motions by failing to pursue rulings before he entered his guilty plea. Counsel further notes the defendant agreed to his sentence as part of a plea bargain, and the trial court properly advised him of his constitutional rights prior to accepting his guilty plea.

Appellate counsel has filed a motion to withdraw as attorney of record, stating she has complied with the provisions of Anders and Jyles, and she has notified the defendant of his right to file a pro se brief in this appeal.

This Court sent the defendant a letter by certified mail, informing him that an Anders brief had been filed and that he would have until August 29, 2008 to file a pro se supplemental brief. Although the letter was sent to the address provided the defendant’s court-appointed counsel, the letter was returned, marked “Return to Sender/unclaimed/unable to forward.”

An independent review of the record supports appellate counsel’s assertion that there are no non-frivolous issues to be raised on appeal. When a defendant pleads guilty, he normally waives all non-jurisdictional defects in the proceedings leading up to the guilty plea and precludes review of such defects either by appeal or post-conviction relief. State v. Wingerter, 05-697, p. 5 (La.App. 5 Cir. 3/14/06), 926 So.2d 662, 664.

As appellate counsel notes, the defendant filed various pre-trial motions, including motions to suppress the evidence and confession, but the trial court did not hear his motions. Consequently, there are no trial court rulings the defendant could have preserved for appeal under State v. Crosby, 338 So.2d 584 (La.1976). Further, the defendant waived his outstanding pretrial motions by pleading guilty | ¿without complaining that the trial court had neither heard nor ruled on them. State v. Corzo, 04-791, p. 2 (La.App. 5 Cir. 2/15/05), 896 So.2d 1101, 1102.

The record shows the trial court properly advised the defendant of his right to a jury trial, his right of confrontation, and his privilege against self-incrimination, as required by Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). The judge also explained to the defendant the offense with which he was charged and the sentencing range for that offense. The judge ascertained that the defendant understood his rights and that he wished to waive those rights and plead guilty. In addition, the defendant, his attorney, and the trial judge signed a waiver of rights form that enumerated the defendant’s rights and detailed the sentence he would receive pursuant to his guilty plea. As appellate counsel notes, the defendant did not make or file a motion to reconsider sentence.

Because appellate counsel’s brief adequately demonstrates by full discussion and analysis that she has reviewed the trial court proceedings and cannot identify any non-frivolous basis for an appeal, and an independent review of the record supports counsel’s assertion, the defendant’s conviction is affirmed and appellate counsel’s motion to withdraw as attorney of record is granted.

However, as discussed below, we find reversible sentencing errors on error patent review.

ERROR PATENT DISCUSSION

Pursuant to this Court’s standard procedure, as required by La.C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975); State v. Weiland, 556 So.2d 175 (La.App. 5 Cir.1990), the record was reviewed for errors patent. We found a sentencing error that requires the sentence be vacated and a new sentence imposed.

La.C.Cr.P. art. 879 requires the trial court to impose a determinate sentence. In this case the sentence imposed by the trial court is indeterminate. The judge 17imposed sentence as follows: “Mr. Walker, it’s going to be the sentence of the Court that you serve two (2) years hard labor at — I’ll allow you to do that in home incarceration with ATI.” The judge did not orally impose conditions of home incarceration. Nevertheless, the Conditions of Watch Patrol Home Incarceration form lists various conditions. That form was signed by the defendant and his attorney, but was not signed by the judge.

First, the trial court ordered that defendant’s hard labor sentence be served in home incarceration. La.C.Cr.P. art. 894.2 provides that the trial court may order home incarceration in lieu of imprisonment — not as imprisonment. Therefore, a hard labor sentence and an order of home incarceration are incongruent. In order to sentence a defendant to home incarceration, first the sentencing court must suspend the imprisonment and order the suspension to be served in home incarceration with supervision. La.C.Cr.P. art. 894.2(B).

Further, the court shall specify the conditions of home incarceration when such sentence is imposed, and the court may, at any time during the period of home incarceration, modify, change, or add to the conditions of such incarceration. La. C.Cr.P. art. 894.2(C) and (F).

In this case, the Conditions of Watch Patrol Home Incarceration form is ambiguous. It shows the defendant was sentenced to two years, which number is handwritten on the form. The form then indicates that the sentence is suspended, and the defendant is placed on “(active) (inactive) probation for_ (months)/ (years).” The probation is not designated as either active or inactive, and there is no indication of how many months or years the probation will last. It seems, nevertheless, the trial court intended the defendant to be placed on active probation because item 5 of the form states, in part, “A copy of your most recent |sphone bill must be brought to the first meeting with your probation officer(Emphasis added.)

This Court addressed a similar sentencing issue in State v. Sosa, 04-507 (La.App. 5 Cir. 12/12/06), 948 So.2d 236, writ not considered, 07-0077 (La.9/21/07), 964 So.2d 321. In Sosa the trial court initially sentenced the defendant to five years at hard labor, the first two of which were to be served on home incarceration. The trial court suspended the last two years of the sentence and placed the defendant on inactive probation. The court also ordered the defendant to pay restitution. The prosecutor advised the trial court that unless the first two years of the defendant’s sentence were probated, the victim would have to wait two years to receive any restitution payments. The trial court then amended the sentence to give the defendant probation immediately. The court further stated that the first two years of the sentence would be served on home incarceration as a condition of probation, and the last three years would be served on active probation. Sosa, 04-507, pp. 12-13, 948 So.2d at 244. The defendant’s commitment showed the defendant received a five-year sentence at hard labor and was placed on three years of active probation, the first two years of which would be served on home incarceration as a special condition of probation. Id., 04-507 at 13, 948 So.2d at 244.

On appeal, this Court found the trial court apparently intended to suspend the defendant’s entire five-year sentence and to place the defendant on active probation for five years, the first two of which would be served in home incarceration. We concluded the record was not sufficiently clear as to the trial court’s intention, and therefore the defendant’s sentence was indeterminate. We vacated the sentence and remanded to the trial court for re-sentencing. Id., 04-507 at 13, 948 So.2d at 944-45.

|3Based on the foregoing, we find the sentence here must be vacated and the defendant must be re-sentenced.

DECREE

For the foregoing reasons, the defendant’s conviction is affirmed, but the sentence is vacated and the case is remanded for resentencing as set out in this opinion. The motion by counsel for appellant to withdraw as counsel hereby is GRANTED.

MOTION TO WITHDRAW AS COUNSEL GRANTED; CONVICTION AFFIRMED; SENTENCE VACATED; CASE REMANDED.

      . The procedure set forth in Benjamin for compliance with Anders was sanctioned by the Louisiana Supreme Court in State v. Mouton, 95-0981, pp. 1-2 (La.4/28/95), 653 So.2d 1176, 1177 (per curiam), and adopted by this Court in State v. Bradford, 95-929, pp. 3-4 (La.App. 5 Cir. 6/25/96), 676 So.2d 1108, 1110.

      . The United States Supreme Court most recently reaffirmed its position in Anders in Smith v. Robbins, 528 U.S. 259, 120 S.Ct. 746, 145 L.Ed.2d 756 (2000).