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

text:
    Stuart H. SMITH, Rodney Stephens, David A. Veazey, Guadalupe Gamez, and Neal Laney v. CITY OF NEW ORLEANS, through its Director of Department of Public Works, John H. SHIRES, Parking Enforcement Officers for Unit 10, Beat 100 (P. Harris, Badge 139) (Thomas, Badge 103) and (C. William, Badge 78), Director of Department of Safety and Permits, Michael Centineo, et al.
    No. 2010-CA-1464.
    Court of Appeal of Louisiana, Fourth Circuit.
    July 6, 2011.

      Stephen B. Murray, Sr., Arthur M. Murray, Nicole Ieyoub-Murray, Jessica W. Hayes, Murray Law Firm, Scott M. Ga-lante, Salvador I. Bivalacqua, Galante & Bivalacqua, Barry J. Cooper, Jr., Cooper Law Firm, L.L.C., New Orleans, LA, for Stuart H. Smith, et al.

      Harry Rosenberg, Christopher K. Ral-ston, Stephanie V. Lemoine, Phelps Dunbar L.L.P., New Orleans, LA, for Standard Parking Corporation & Parking Solutions, LLC.
    Nannette Jolivette-Brown, City Attorney, Darryl M. Phillips, Chief Deputy City Attorney, Robert J. Ellis, Jr., Deputy City Attorney, Mary Katherine Taylor, Assistant City Attorney, New Orleans, LA, for City of New Orleans.
    (Court composed of Judge TERRI F. LOVE, Judge MAX N. TOBIAS, JR., Judge PAUL A. BONIN).
   MAX N. TOBIAS, JR., Judge.

hln this case, we address two separate partial summary judgments granted by the trial court. After examining the law and the appellate record, we affirm the judgments and remand to the trial court for further proceedings.

On 1 October 2003, the City of New Orleans (the “City”), through the Department of Public Works, issued a request for proposals for the installation, operation, and maintenance of metered parking spaces. Following a pilot program to evaluate various parking management equipment, Standard Parking Corporation and Parking Solutions, L.L.C. (hereinafter collectively referred to as “Standard”) and the City entered into a contract dated 11 October 2004, for the installation, operation, and maintenance of Parkeon Stelio Pay-and-Display stations (“Parkeon stations”). Pursuant to this contract, Standard installed Parkeon stations at the locations designated by the City. Standard is also required by the contract to maintain the Parkeon stations and collect the parking fees from them.

Un early 2005, the City of New Orleans (“City”) began replacing traditional coin operated parking meters with the Parkeon stations. During this time, the named plaintiffs received citations before August 2005 as follows:

1. Stuart H. Smith (“Smith”) received citation numbers 140244775, 140855035, and 140505190 for no parking receipt and expired time, while parking in front of his property located at 516 Saint Philip Street, New Orleans, Louisiana 70116, for reasons that of no ticket in the windshield of the vehicle and expired time;
2. Rodney Stephens received citation number 140282925 for a violation similar to Smith’s while parked in front of the driveway of Smith’s property;
3. David Veazey received citation number 139972814 for a similar violation because he placed coins in the old mechanical meter instead of the new receipt-issuing system; and he also received citation numbers 139970121, 139970121, 13933073, 139319622, 140836555, and 140864150 for no parking receipt while parked in front of the driveway of Smith’s property; and,
4. Guadalupe Gomez received citation number 139972825 for no parking receipt and expired time while parked in front of the driveway of Smith’s property-

On 8 August 2005, the City passed M.C.S., Ord. No. 22035, which updated the previous parking ordinances to accommodate the changes in technology in the method of payment from the traditional coin-operated meters to the Parkeon stations. The ordinance provides for retroactive application to 1 January 2005.

The plaintiffs claim to have been harmed by the “illegal and unconstitutional installation and implementation of the Parkeon System.” On 22 April 2005, the plaintiffs filed a petition for injunctive relief, declaratory judgment, and writ of mandamus, alternatively, damages for actions pursuant to the Takings Clause of the Louisiana Constitution, LSA-Const. Art. I, § 4(B), seeking various forms of 13relief including, but not limited to, the following: (1) a declaratory judgment that the Parkeon stations were installed without the mandated public hearings and the review of the proper permitting and zoning departments; (2) a writ of mandamus to be issued to the New Orleans City Planning Commission along with the Vieux Carré Commission to undertake their duty to determine whether or not the Parkeon stations conform with the French Quarter and its environment; (3) a preliminary injunction enjoining any further enforcement activities arising from the Parkeon stations; and (4) invalidation and dismissal of the parking citations listed above.

On 2 May 2005, the plaintiffs filed a first supplemental and amending petition, which further detailed the claims of the plaintiffs. It is in this pleading that the plaintiffs first prayed for class certification pursuant to La. C.C.P. art. 591, et. seq., seeking to establish a class of persons residing or located in Orleans Parish who have incurred fines improperly issued by the City for improperly issued parking citations resulting from the Parkeon stations. Certification of a class had not been addressed in the court below at the time of this appeal. See La. C.C.P. art. 592.

On 26 July 2005, after seeking leave of court, the plaintiffs filed a second supplemental and amending petition. In response to exceptions filed by Standard, the plaintiffs filed an amended, restated petition for damages on 31 March 2008.

At some time after suit was filed, all of the tickets were dismissed with no fines paid by the plaintiffs.

Almost two years later, the plaintiffs filed a motion for partial summary judgment, addressing whether Ordinance 22035 could be applied retroactively. Oral argument was held on 17 June 2010; the court granted the motion.

|4The judgment and reasons for judgment were issued on 23 July 2010. The Court stated:

It is undisputed that the installation and implementation of the Parkeon Pay Stations parking system (“Parkeon System”) changed the parking meter system throughout the City of New Orleans by going from a traditional single or double metered space system to meters which were capable of controlling multiple parking spaces.
Ordinance 22035 passed in August 2005 not only ratified the use of the Parkeon System, it provided for the enforcement of citations issued pursuant to their operation as of July 14, 2005. As such, the Ordinance retroactively changed the legal consequences for metered parking as it existed before its enactment. Although legal prior to August 2005, parking at a non metered parking space became illegal if it occurred between July 14 and August 8, 2005.
The City argues Ordinance 22035 clarified existing law, and therefore, is not technically ex post facto. The Court disagrees. When legislation applies to a circumstance that arose before the law is changed, it has ex post facto effect.
This timely appeal by the City ensued.

Standard filed a motion for summary judgment on 26 October 2009, asserting that the plaintiffs could not assert a cause of action against it stemming from their grievances against the City and the Par-keon stations. After allowing more time for the plaintiffs to conduct discovery, oral argument was held on 17 June 2010; the judgment granting the motion was issued on 13 July 2010. On 20 August 2010, plaintiffs filed a motion to designate the judgment as final and a petition for appeal. Both were granted.

In its reasons for judgment the court found that,

Plaintiffs have produced no evidence that Standard Parking had a duty to advise the City on drafting and/or adopting the proper ordinances. Parkeon did not train or instruct the parking enforcement officers, issue citations or determine what constitutes a violation. There is no | factual support that Standard implemented the Parkeon System which forms the basis of plaintiffs’ claims.

Both the plaintiffs and the City have appealed the respective judgments. The plaintiffs allege that the trial court erred by granting the motion for summary judgment in favor of Standard because they did not have sufficient time to conduct discovery and that genuine issues of material fact exist. We will address these assignments of error first.

I.

This lawsuit was filed on 22 April 2005. Under La. C.C.P. art. 966, a motion for summary judgment is appropriate only after “adequate discovery.” However, it is not an abuse of the trial court’s wide discretion in discovery matters to entertain a motion for summary judgment before discovery has been completed. Simoneaux v. E.I. du Pont de Nemours & Co., Inc., 483 So.2d 908 (La.1986). It is within the trial court’s discretion to render a summary judgment or require further discovery. Eason v. Finch, 32,157 (La.App. 2d Cir. 8/18/99), 738 So.2d 1205, writ denied, 99-2767 (La.12/10/99), 751 So.2d 861.

As the Court held in Simoneaux, “[t]he only requirement is that the parties be given a fair opportunity to present their claim. Unless plaintiff shows a probable injustice a suit should not be delayed pending discovery when it appears at an early stage that there is no genuine issue of fact.” 483 So.2d at 912-13; Mitchell v. Valteau, 09-1095, p. 13 (La.App. 4 Cir. 1/27/10), 30 So.3d 1108, 1116.

The plaintiffs had over four years in which to conduct discovery. The trial court even continued the first setting of the motion in October 2009 so that the plaintiffs could have additional time to perform discovery. We find that they had | sample time. The trial court neither abused its discretion nor erred. Therefore, this assignment of error is without merit.

Next, the plaintiffs argue that Standard failed to demonstrate that no genuine issues of material fact exist, thereby warranting summary judgment and dismissal from the lawsuit. While the plaintiffs have raised various issues of fact, none are “material” to imposing liability on Standard. Standard had nothing to do with the decision to replace the meters, did not contribute to the wording of the ordinance, or is liable for any of the legal ramifications of the Parkeon stations. Thus, this assignment of error is also mer-itless.

Finally, the plaintiffs argue that Standard is liable to them for conversion and/or negligence. Again, no evidence exists to support these theories. Standard operated under a contract with the City. It did not convert any of the monies collected from the Parkeon stations; these were deposited in the City’s accounts. Further, the plaintiffs have not identified any duty that Standard owes to them. Without a duty, negligence cannot exist. Lemann v. Essen Lane Daiquiris, Inc., 05-1095, p. 8 (La.3/10/06), 923 So.2d 627, 633. Again, this assignment of error is without merit.

As a result, we affirm the summary judgment issued in favor of Standard Parking Corporation and Parking Solutions, L.L.C., finding that they were properly dismissed from this ease.

Jill-

We now turn to the appeal filed by the City. It contends that the trial court erred in finding that Ordinance 22035 is not retroactive despite several arguments to the contrary.

The City first draws the court’s attention to Section 1 of the ordinance, which' provides that “[t]he replacement of single/double space parking meters with mul-ti-space pay stations in areas previously designated by this council as a metered space or otherwise regulated parking space is specifically ratified retroactively to January 1, 2005.” [Emphasis supplied.] The City argues that the ordinance itself expresses the legislative intent of retroactive application; thus, the inquiry ends there.

Article 6 of the Louisiana Civil Code addresses the retroactivity of laws:

In the absence of contrary legislative expression, substantive laws apply prospectively only. Procedural and interpretative laws apply both prospectively and retroactively, unless there is a legislative expression to the contrary.

Notwithstanding, even when a legislative body has expressed its intent to give a substantive law retroactive effect, the law (or ordinance) may not be applied retroactively if it would impair contractual obligations or disturb vested rights. Smith v. Board of Trustees of Louisiana State Employees’ Retirement System, 02-2161, p. 7 (La.6/27/03), 851 So.2d 1100, 1105.

The City maintains that retroactive application of the ordinance does not offend due process because residents have always been on notice that they would be fined if they did not place money in the traditional coin-operated meters. | ^Because the Par-keon stations did not provide for any new violations, it also allowed citizens to be fined if they did not park to pay. The City contends that the Parkeon stations merely updated the traditional coin meter to accommodate changes in technology in the method of payment; therefore, it should be applied retroactively. The trial court disagreed.

For purposes of determining whether to give a legislative body’s enactment retrospective or prospective application, a substantive ordinance is an ordinance that impose new duties, obligations, or responsibilities upon parties, or ordinances that establish new rules, rights, and duties or change existing ones. Jacobs v. City of Bunkie, 98-2510, p. 8 (La.5/18/99), 737 So.2d 14, 20. Interpretative ordinances are those that clarify the meaning of an ordinance and are deemed to relate back to the time that the ordinance was originally enacted. Id. A procedural, remedial, or curative ordinance relates to the form of the proceeding or operation of the ordinance. King v. State ex rel. Louisiana Dept. of Public Safety and Corrections, 98-2910, p. 4 (La.App. 1 Cir. 2/18/00), 754 So.2d 1119, 1122. A procedural ordinance prescribes a method for enforcing a substantive right and relates to the form of the proceeding or the operation of the ordinance. Jacobs, 98-2510, p. 8, 737 So.2d at 20. A remedial ordinance includes one that is designed to correct an existing ordinance. See Blacks Law Dictionary 1296 (7th ed.1999). A legislative body may cure by subsequent act an irregularity of nonobservance of requirements which it originally might have dispensed with, provided that vested rights have not intervened. Barnett v. State Mineral Board, 193 La. 1055, 1068, 192 So. 701, 705 (1939).

Although the ordinance specifically provides for retroactive application to 1 January 2005, the trial court stated the ordinance provided for the enforcement of | ncitations issued pursuant to their operation as of July 14, 2005; this is the date of the initial action taken by the City Council. However, because all of the citations listed in the petitions were issued prior to the filing of the 22 April 2005 lawsuit, the City was enforcing the Parkeon stations before July of that year.

The trial court found that the installation and implementation of the Parkeon stations in January 2005 changed the parking meter system throughout the City. We agree. Even the City Council recognized that they were losing money by delaying a vote on Ordinance 22035:

CLARKSON: Thank you, Mr. Impasta-to. And whether or not these meters should have gone in is not the decision today, that’s an administrative decision. Whether or not the law is unconstitutional would have to be dealt with after this, that’s the law department. This council gets the purview of making sure that the city is, within our legislative purview, is within its jurisdiction, are ensuring that we’ve done everything legislatively to ensure that with this, that our Department of Public Works can collect the necessary millions and millions of dollars that the city is out of, in order to continue the Department of Public Works’ projects.

Therefore, we find that M.C.S., Ordinance 22035 became effective on 8 August 2005 and is to be applied prospectively only. Citizens were entitled to notice that the Parkeon stations were being used to issue citations for parking violations, in lieu of the coin-operated meters. This was especially important for those areas in which both the meters and Parkeon stations were simultaneously operational.

| mFinally, the City also argues that the trial court erred by holding that the ordinance offends the prohibition against ex post facto laws. The Municipal Code clearly defines parking and stopping violations as “civil:”

Sec. 154-686. — Civil nature of parking and stopping violations.
The civil regulation of parking and stopping (hereinafter sometimes referred to as “parking”) shall be governed by this article. Any parking violation prohibited in this article shall be a civil violation only and no criminal penalty will be imposed for its commission. For purposes of this article, a parking violation is the violation of any provision of this article providing for or regulating the parking or stopping of a vehicle. Nothing contained in this article shall be construed to repeal, restrict or amend any other section of this chapter which other section shall continue to remain and remain in full force and effect as if this article had not been adopted.

Because the ordinance is civil, not criminal, it does not offend the prohibition against ex post facto laws. Sapir v. Hardy, 349 So.2d 478, 480 (La.App. 4th Cir.), writ denied, 349 So.2d 867 (La.1977).

Based on the foregoing, we affirm the partial summary judgments issued by the trial court, and remand the matter for further proceedings.

AFFIRMED; REMANDED.

BONIN, J., concurs with reasons.

BONIN, J.,

concurs with reasons.

Ill respectfully concur in affirming the judgment in favor of Standard.

I specially concur in affirming the judgment in favor of Smith and against the City because we decided the matter on appeal, as the district court should have, on a dispositive non-constitutional ground. See, e.g., La. Municipal Ass’n v. State, 04-0227, p. 34 (La.1/19/05), 893 So.2d 809, 836; Sims v. Mulhearn Funeral Home, Inc., 07-0054, p. 6 (La.5/22/07), 956 So.2d 583, 588 (“we pay heed to the well-settled precept that courts should refrain from reaching or deciding the constitutionality of legislation unless, in the context of a particular case, the resolution of the constitutional issue is essential to the decision or controversy”).

      . The ordinance was prepared by Council-member Clarkson on 14 July 2005 and adopted by the Council on 4 August 2005. It was then delivered to Mayor Nagin and returned to the City Council on 8 August 2005.

      . For our purposes, "laws” mean ordinances.


source: Caselaw Access Project

author: GAIDRY, J.

license: Public Domain

text:
    Sherie BURKART v. Raymond C. BURKART, Jr.
    No. 2010 CA 2207.
    Court of Appeal of Louisiana, First Circuit.
    July 7, 2011.

      Angela Wilt Cox, Slidell, LA, for Plaintiff/Appellee Sherie Burkart.
    Amanda A. Trosclair, Covington, LA, for Defendant/Appellant Raymond C. Burkart, Jr.
    Before CARTER, C.J., GAIDRY and WELCH, JJ.
   GAIDRY, J.

|2A divorced husband appeals a judgment granting a preliminary injunction requested by his former wife pursuant to La. R.S. 9:371 and denying his motion to subpoena opposing counsel to testify at the hearing. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

Raymond C. Burkart, Jr. and Sherie Burkart were married in 1993. On July 10, 2009, Ms. Burkart filed a petition for divorce, in which she also sought child support and interim spousal support. In her petition, verified by her affidavit, she also requested the issuance of a temporary restraining order prohibiting Mr. Burkart from alienating, encumbering, or otherwise disposing of or concealing any items of community property, as well as the issuance of an order requiring him to file a detailed descriptive list of all community property. Among the community assets described were certain “bank accounts,” as well as “Smith Barney accounts.” A temporary restraining order was issued as prayed for on July 10, 2009, and a hearing on the request for a preliminary injunction and other matters was scheduled for September 21, 2009.

A hearing officer conference was scheduled in the interim, pursuant to local rules. As the result of that conference, the parties stipulated to the lifting of the restraining order as to certain of Mr. Bur-kart’s law office accounts and the dismissal of a separate restraining order against harassment by Mr. Burkart. The recommendation by the hearing officer, however, erroneously recommended the dismissal of “injunctive relief,” without further description or reservation, “without prejudice.”

On September 21, 2009, the trial court signed a judgment designating the recommendations of the hearing officer as temporary orders and also | ^rendered a separate judgment of separation of property, terminating the community property regime retroactive to the date of filing of the petition for divorce.

On December 2, 2009, Ms. Burkart filed a motion for allocation of community assets, requesting that the trial court allocate a financial account from which certain community liabilities or debts should be paid, pursuant to La. R.S. 9:374(E).

On March 22, 2010, Ms. Burkart filed a verified motion for a new or reissued temporary restraining order and a preliminary injunction prohibiting Mr. Burkart from withdrawing, alienating, or otherwise disposing of any items of community property, including the legal fee deposited in the registry of the court, and for subsequent allocation of that legal fee pursuant to La. R.S. 9:374(E). The motion explained that the hearing officer’s recommendation of September 9, 2009, incorrectly purported to recommend dissolution of all temporary restraining orders, rather than only the order prohibiting harassment. The following allegation was also made in the motion:

On March 17, [2010], Undersigned Counsel received a call from a representative at Smith Barney Investments indicating that Mr. Burkart was attempting to withdraw funds which were enjoined. The representative indicated that Mr. Burkart had faxed over the Hearing Officer Recommendations and indicated there was no injunction.

The trial court accordingly issued another temporary restraining order and initially set a hearing on June 14, 2010, for the request for the preliminary injunction.

On April 19, 2010, Mr. Burkart filed a peremptory exception of res judicata in response to Ms. Burkart’s motion for a renewed or reissued [ ^preliminary injunction. The exception was overruled by judgment signed on June 14, 2010.

On May 21, 2010, Mr. Burkart filed a motion for a subpoena to compel the testimony of Ms. Burkart’s attorney, pursuant to La. C.E. art. 508, relating to the communication from the Smith Barney representative described in her motion for the preliminary injunction. The parties also filed a number of other motions and exceptions. On June 21, 2010, the parties jointly moved to continue the hearing on the motion for the preliminary injunction and the other pending motions and exceptions.

A judgment of divorce pursuant to La. C.C. art. 102 was signed on August 16,-2010.

The hearing on Ms. Burkart’s motion for the preliminary injunction, Mr. Burkart’s motion for the subpoena to opposing counsel, and other matters was held on August 16, 2010. The trial court ruled that the original temporary restraining order issued on July 10, 2009, had never been dismissed by the judgment of September 21, 2009, and converted the order to a preliminary injunction. The trial court also ruled that the testimony of Ms. Bur-kart’s counsel would not be compelled by subpoena, and permitted Mr. Burkart to make an offer of proof in that regard and with regard to the testimony of John La-bouisse, a vice-president of wealth management employed by Smith Barney.

The trial court’s judgment on the motions and other matters was signed on September 8, 2010. This appeal followed.

ASSIGNMENTS OF ERROR

We summarize Mr. Burkart’s assignments of error as follows:

(1) The trial court committed legal error in granting a preliminary injunction against Mr. Burkart without any evidence or testimony at a | ^contradictory evidentia-ry hearing under La. C.C.P. art. 3609, thereby denying Mr. Burkart due process.

(2) The trial court committed legal error in denying Mr. Burkart an evidentiary hearing on his motion for a contradictory hearing under La. C.E. art. 508.

DISCUSSION

The issuance of injunctive relief is limited to “cases where irreparable injury, loss, or damage may otherwise result to the applicant, or in other cases specifically provided by law.” (Emphasis added.) La. C.C.P. art. 3601. Louisiana Code of Civil Procedure article 3610 provides that “[a] temporary restraining order or preliminary injunction shall not issue unless the applicant furnishes security in the amount fixed by the court, except where security is dispensed with by law.” (Emphasis added.)

Louisiana Code of Civil Procedure article 3944 authorizes either party to a divorce action to obtain injunctive relief under La. R.S. 9:371, et seq., without bond. Louisiana Revised Statutes 9:371 provides that “[i]n a proceeding for divorce, a spouse may obtain an injunction restraining or prohibiting the disposition or encumbrance of community property until further order of the court.”

In Fuori v. Fuori, 334 So.2d 488, 493 (La.App. 1st Cir.1976), this court implied that under former La. C.C. art. 149 and the prior version of La. C.C.P. art. 3944, either spouse is “entitled to an injunction as a matter of right” prohibiting the other spouse from disposing of community property. |fiWe held, however, that even assuming that such was not the case, the evidence presented supported a finding of possible irreparable injury, warranting in-junctive relief under the general standard ofLa. C.C.P. art. 3601. Id.

In the later case of Davis v. Davis, 420 So.2d 432, 435 (La.1982), the Louisiana Supreme Court interpreted former La. C.C. art. 149 as authorizing injunctive relief until either an inventory or partition of community property had been completed. The court observed that “the necessity for injunctive protection contemplated by Article 149” is based upon the lack of a partition of the community property, and that such protection should continue until otherwise ordered by the court or “the necessity abates because the community property has been inventoried and/or partitioned.” Id. at 435. (Emphasis added.) Without imposing any other requirement such as irreparable injury, the court simply held that “[a] party to a divorce ... is entitled to injunctive relief to protect his or her share of the community property until the property is inventoried and/or partitioned.” Id.

In Hendrick v. Hendrick, 470 So.2d 449, 456-57 (La.App. 1st Cir.1985), interpreting the prior version of La. C.C.P. art. 3944, we similarly held that it was unnecessary for a party seeking an injunction under its terms 17to post bond or make a showing of irreparable harm. We also concluded that “[La. C.C.P.] art. 3944 contemplates allowing injunctive relief as long as the necessity for it continues” and that there was “a continuing necessity for injunctive relief’ in that case, as “the former community between the parties had apparently been neither inventoried nor partitioned.” Id. at 457.

Despite the foregoing opinions, there seems to remain some ongoing uncertainty as to the necessity for proving the risk of irreparable injury as a predicate to obtaining injunctive relief under La. R.S. 9:371. One commentator has tentatively concluded, citing Hendrick, that “[t]he in-junctive relief ... is afforded without the necessity of bond and arguably without the necessity of proving irreparable harm.” 16 Katherine S. Spaht & Richard D. Moreno Louisiana Civil Law Treatise: Matrimonial Regimes § 7.4 (3rd ed.2007). (Emphasis added.)

During the course of argument at the hearing at issue, counsel for Mr. Burkai’t essentially conceded that a party seeking injunctive relief under La. R.S. 9:371 pending partition of community property under La. R.S. 9:2801 does not bear the burden to prove irreparable harm. However, she urged that a factual basis for the necessity of the injunctive relief must be pleaded and that evidence was required to support the issuance of such relief. In its oral reasons for its decision finding the temporary restraining order to be maintained and to grant the preliminary-injunction, the trial court observed that injunctive relief under La. R.S. 9:371 is typically “granted as a matter of course” and “is [not] unusual in a community property partition proceeding.” Based upon that conclusion, the trial court also ruled that the testimony of Ms. Burkart’s counsel would not be required and denied Mr. Burkart’s motion to subpoena opposing counsel.

|sMr. Burkart cites the case of Lytal v. Lytal, 00-1934 (La.App. 1st Cir.11/14/01), 818 So.2d 111, writ denied, 01-3272 (La.3/8/02), 810 So.2d 1164, in which the trial court held an evidentiary hearing at which testimony was taken before issuing an injunction to the husband, enjoining him, his agents, and corporate officers of a community-owned corporation from disposing of or concealing the net proceeds from the sale of an offshore supply boat. Mr. Burkart contends that Lytal stands for the proposition that an evidentiary hearing to establish the potentiality of irreparable injury is invariably required before a preliminary injunction is issued pursuant to La. R.S. 9:371, unless the parties consent to issuance of such injunctive relief. We disagree. A careful examination of that case’s facts does not support that contention.

In Lytal, all of the stock of a community-owned corporation was issued in the husband’s name. Evidence was required during the hearing in Lytal to establish that the husband was systematically disposing of the assets of the close corporation and removing funds from the corporate structure for his personal benefit, to the detriment of the wife’s interest in the corporate stock value or net worth. The evidence was necessary not for the primary purpose of establishing irreparable injury, but rather to establish the character of the corporate assets as community property in the husband’s effective control, rather than as corporate property, on the grounds that the corporation was the alter ego of the husband, its sole stockholder, and to justify extending the scope of the injunction to the corporate agents and officers. This court concluded that once it was established that the corporate ^assets and the funds resulting from their sale were community property, “a preliminary injunction was properly issued without the need to post a bond or show irreparable injury” under La. R.S. 9:371. Id., 00-1934 at pp. 3-5, 818 So.2d at 113-14. (Emphasis added.)

We conclude that La. R.S. 9:371 addresses one of the “other cases specifically provided by law” in which injunctive relief is available without a showing of the potential for irreparable injury. See La. C.C.P. art. 3601(A). The only necessary showing required for issuance of an injunction under La. R.S. 9:371 is that the community property has not been partitioned and is therefore subject to possible alienation or disposal by one or both parties. The record of this action, including the parties’ pleadings, admissions, and relief sought, indisputably established that the community had not been partitioned at the time of the hearing.

As to Mr. Burkart’s claim of denial of due process, our state may determine the process by which legal rights are asserted and enforced so long as a party receives due notice and an opportunity to be heard. Lott v. State ex rel. Dep’t of Public Safety & Corr., 98-1920, p. 7 (La.5/18/99), 734 So.2d 617, 621. No one, however, has a vested right in any given mode of procedure. Id. The determination of what procedural safeguards are required for due process depends on the nature of the proceeding and the nature of the right or interest affected. Paschal v. Hazlinsky, 35,513, p. 6 (La.App. 2nd Cir.12/19/01), 803 So.2d 413, 418.

The record establishes that Mr. Burkart was given proper notice of the scheduled hearing, which was in fact a contradictory hearing on a rule to show cause, and that he was not deprived of an opportunity to be heard on |10the issues actually relevant to the requested injunctive relief under La. R.S. 9:371. See, e.g., Crais v. Crais, 98-1477, pp. 6-8 (La.App. 4th Cir.1/13/99), 737 So.2d 785, 789, writ denied, 99-0763 (La.5/14/99), 741 So.2d 668. The mere fact that the trial court ruled that injunctive relief was warranted based upon the unapportioned status of the community property and declined to consider his evidence relating to what was determined to be an essentially irrelevant point does not amount to a denial of due process under the circumstances. Mr. Burkart’s first assignment of error has no merit.

Motion for Subpoena to Opposing Counsel

Louisiana Code of Evidence article 508 strictly limits the issuance of subpoenas or other court orders seeking to compel the testimony of an attorney relating to information obtained in the course of representing a client. In general, such a subpoena or order may not issue unless it is determined at a contradictory hearing that: (1) the information is non-privileged and does not amount to attorney work product; (2) the information is “essential” to the case of the opposing party and “not merely peripheral, cumulative, or speculative;” (3) the purpose is not to harass the attorney or his client; and (4) there is no practicable alternative means to obtain the information sought. See La. C.E. art. 508(A).

An attorney-client privilege may be waived if a party injects into litigation an issue that requires testimony from his attorney. See Bank One, N.A. v. Payton, 07-0139, pp. 11-12 (La.App. 4th Cir.9/26/07), 968 So.2d 202, 209, citing Thornton v. Syracuse Sav. Bank, 961 F.2d 1042, 1046 (2nd Cir.1992). Mr. Burkart contends that by including the allegation relating to the purported communication from a Smith Barney representative to her counsel in her motion for a preliminary injunction, Ms. Burkart waived any privilege and placed the communication at issue for purposes of the hearing. We conclude, as did the trial court, that the actual issue presented for determination by the trial court did not require testimony from Ms. Burkart’s attorney.

Because irreparable injury was not a requisite element of the injunctive relief granted and the testimony of Ms. Bur-kart’s attorney was therefore not relevant nor required to establish the potential for irreparable injury relating the Smith Barney account, the proposed subpoena would have served no relevant purpose. For the same reasons, the proffered testimony of Mr. Labouisse, the Smith Barney vice-president, offered to challenge the veracity of the allegations and expected testimony of Ms. Burkart’s attorney on an ultimately irrelevant matter, was likewise irrelevant to the determination of the issue presented. Mr. Burkart’s motion was therefore correctly denied by the trial court. Mr. Burkart’s second assignment of error has no merit.

The judgment of the trial court is affirmed. All costs of this appeal are assessed to the appellant, Raymond C. Bur-kart, Jr.

AFFIRMED.

      . Although the motion recited the date as "March 17, 2009,” that was an obvious typographical error, as the original temporary restraining order was not issued until July 10, 2009, with the first hearing officer conference shortly thereafter.

      . Former Louisiana Civil Code article 149, until its repeal, provided:
      During the suit for separation, a spouse may, for the preservation of his rights, require an inventory and appraisement to be made of the community property and obtain an injunction restraining the disposition of the whole of the community or of specified things of the community property.
      Acts 1990, No. 1009, § 7, effective January 1, 1991 revised the Civil Code articles dealing with separation from bed and board and divorce, eliminating the action for separation from bed and board and providing only for an action for divorce. The act also repealed La. C.C. art. 149 and in its place added La. R.S. 9:371. Section 4 of the act changed the language of La. C.C.P. art. 3944, which formerly read as follows:
      Either party to an action for separation from bed and board or divorce may obtain injunctive relief without bond prohibiting the other party from disposing of or encumbering community property.

      . In a concurring opinion, however, Justice Lemmon interpreted former La. C.C. art. 149 as requiring "a showing that an injunction is necessary for protection of the spouse’s community property rights (which arguably is a showing of irreparable injury).” He also expressed the view that such "necessity must be proved if tire injunction is contested,” and that if its issuance was so contested, the injunction could not be issued "as a matter of form on simple request.” Davis, 420 So.2d at 436 n. 1 (Lemmon, J., concurring).

      . In that regard, see La. C.C. art. 2350, providing that the spouse who is the sole manager of a community enterprise has the exclusive right to alienate or encumber its movables, and La. C.C. art. 2351, providing a similar rule relating to movables legally registered in one spouse’s name, such as shares of stock.

      . The injunction afforded by La. R.S. 9:371 has aptly been characterized by a commentator as “extraordinary injunctive relief.” Spaht & Moreno, supra. (Emphasis added.)

      . Although Mr. Burkart made an offer of proof of the testimony of Mr. Labouisse, the Smith Barney vice-president, he made no formal offer of proof of the testimony of Ms. Burkart's counsel, either through actual testimony or through a "statement setting forth the nature of the evidence.” See La. C.C.P. art. 1636 and La. C.E. art. 103. However, we note that the general nature of her expected testimony is evident from the content of her motion, Mr. Burkart’s motion, the supporting memoranda, and the argument of counsel at the hearing.


author: THIBODEAUX, Chief Judge.

text:
    Gloria CLAY v. OUR LADY OF LOURDES REGIONAL MEDICAL CENTER, INC.
    No. 09-1219.
    Court of Appeal of Louisiana, Third Circuit.
    July 13, 2011.
    Philip E. Roberts, Leake & Anderson, L.L.C., Lafayette, LA, for Defendant/Ap-pellee-Our Lady of Lourdes Regional Medical Center, Inc.
    Michael Benny Miller, Miller & Miller, Crowley, LA, for Plaintiff/Appellant-Gloria Clay.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, JIMMIE C. PETERS, and J. DAVID PAINTER, Judges.
   THIBODEAUX, Chief Judge.

I,The claimant/appellant, Gloria Clay, brought a workers’ compensation claim against her employer, defendant/appellee, Our Lady of Lourdes Regional Medical Center, Inc. (Lourdes), for injury to her back while lifting solution supplies. Following surgery, a rehabilitation counselor provided information regarding potential employers. Ms. Clay applied for but did not obtain employment. The Office of Workers’ Compensation (OWC) terminated her benefits. Ms. Clay appealed the termination of benefits and the calculation of her average weekly wage (AWW).

We found that Ms. Clay had attempted to obtain all positions suggested and that the OWC had applied an overly restrictive interpretation of the applicable law. We reversed the termination of benefits and further reversed the OWC’s calculation of Ms. Clay’s AWW at $378.05 because it did not appear to include fringe benefits earned by Ms. Clay in her twenty years with Lourdes. Our calculation included an enhancement for fringe benefits which increased Ms. Clay’s AWW to $416.71.

The Louisiana Supreme Court has remanded Ms. Clay’s case based upon its recent decision finding that a value for fringe benefits to be paid in the future cannot be used to enhance the calculation of an hourly employee’s AWW. See Hargrave v. State of Louisiana, Through Department of Transportation and Development, 10-1044 (La.1/19/11), 54 So.3d 1102.

_kL

ISSUE

On remand, we will reconsider whether the OWC erred in calculating Ms. Clay’s AWW, “in light of the Louisiana Supreme Court’s recent decision in Hargrave,” regarding the interpretation and legislative intent of La.R.S. 23:10E1 (12)(a)(i) and (12)(f).

II.

FACTS AND PROCEDURAL HISTORY

This case is before us on remand from the Louisiana Supreme Court on the issue of fringe benefits used in the calculation of Ms. Clay’s AWW. Our reversal of the OWC’s termination of her benefits and the reinstatement of those benefits from the date of termination, August 25, 2008, forward, along -with our award of additional attorney fees for her counsel’s work on the appeal, are not at issue and remain undisturbed.

In our original opinion, after a de novo review pursuant to Rosell v. ESCO, 549 So.2d 840 (La.1989), we reversed the OWC’s calculation of Ms. Clay’s AWW at $378.05. Where her pay rate with Lourdes was $9.25 per hour, we found that her normal weekly wage was $370.00 ($9.25 x 40). We then added averaged weekly fringe benefits of $27.75 for paid time off (PTO), $11.56 for extended illness time (EIT), and a bonus averaged at $7.40 per week. We found that this total fringe benefit amount of $38.66 increased Ms. Clay’s normal weekly wage of $370.00 to a total AWW of $416.71, for the purpose of calculating her workers’ compensation benefit.

The Louisiana Supreme court remanded the case to us “for consideration in light of Hargrave,” 54 So.3d 1102, which held that the value of annual and sick |3leave, earned, but not previously taxed, does not enhance the calculation of an hourly employee’s AWW in determining the worker’s compensation wage benefit.

III.

LAW AND DISCUSSION

Ms. Clay was a forty-hour-per-week, full-time, hourly employee, paid every two weeks, in twenty-six checks per year. The calculation of Ms. Clay’s AWW is governed by La.R.S. 23:1021(12)(a)(i), which provides in pertinent part as follows (emphasis added):

If the employee is paid on an hourly basis and the employee is employed for forty hours or more, his hourly wage rate [is] multiplied by the average actual hours worked in the four full weeks preceding the date of the accident or forty hours, whichever is greater[.]

Accordingly, if a full-time, forty-hour employee actually works less than forty hours per week in the four full weeks prior to a work accident or injury, the employee is entitled to the “greater” presumption of forty hours per week. See Hargrave, 54 So.3d 1102.

Here, Ms. Clay used paid time off and vacation time during the four full weeks preceding her injury, such that she did not actually work forty hours per week during that period. Because Ms. Clay was a full-time employee, however, she is entitled to the presumption of having worked at least forty hours under La.R.S. 23:1021(12)(a)(i) and under Hargrave.

In Hargrave, the court found that Mr. Hargrave had used thirty-two hours of annual leave and eight hours of sick leave during the four full weeks prior to his accident and that he was entitled to the greater presumption of having worked forty hours under La.R.S. 23:1021(12)(a)(i). Mr. Hargrave’s bi-monthly wage was $1,095.76 for eighty hours of work, and his forty-hour wage was $547.88. The court [4found that he did not work any over-time during the four-week period prior to his injury and that, based upon a normal forty-hour work-week, his AWW was $547.88 (his hourly wage was roughly $13.70). The court in Hargrave found that there was no need to calculate further and, affirming the majority opinion from a panel of this court, denied Mr. Hargrave’s request for an enhanced AWW based upon fringe benefits not yet paid.

There, the court discussed the legislative intent in La.R.S. 23:1021(12)(f), which provides in pertinent part as follows (emphasis added):

Income tax. In the determination of “wages” and the average weekly wage at the time of the accident, no amount shall be included for any benefit or form of compensation which is not taxable to an employee for federal income tax purposes.

In Hargrave, the court stated that it did not believe that the word “taxable” was intended by the legislature to be expanded to include “potentially” taxable fringe benefits that had not yet been received (or used) by the employee but would be received only “at some uncertain point in the future.” Hargrave, 54 So.3d at 1107 (footnote omitted). Accordingly, Ms. Clay’s disability benefit must be based only upon wages and fringe benefits actually paid and taxed during the four full weeks prior to her injury.

Ms. Clay’s injury was June 28, 2005. She was paid every two weeks for eighty hours of work. Her normal hourly wage was $9.25. Hence, a normal, eighty-hour paycheck for Ms. Clay showed gross earnings of $740.00, and her normal forty-hour AWW was $370.00 ($9.25 x 40). If, however, she received payment for overtime hours during the four full weeks prior to her injury, her AWW is calculated on averaged actual hours worked, pursuant to La.R.S. 23:1021(12)(a)(i), because they are “greater” than the normal and presumptive forty-hour week.

1 sHere, the pertinent paychecks are dated June 11 and June 25 of 2005. Ms. Clay’s gross earnings on the check stub for the two-week period ending June 11, 2005, was the normal $740.00 for eighty hours of work. Her gross earnings on the check stub for the two-week period ending June 25, 2005, however, was $772.19. This check included pay for over eighty hours of time. More specifically, it included eighty-seven hours of pay, some of which represented paid time off (“PTO”); some of which represented regular time; and some of which represented night-time/other, a form of special or overtime pay. The portion of the paycheck indicating sixty-four hours of “PTO” represents a fringe benefit already included, earned, used, received, paid, and taxed, during the full four-week pay period prior to Ms. Clay’s accident; it is, therefore, includable in the calculation of AWW pursuant to La.R.S. 23:1021(12)(f). This check included nineteen hours of regular pay and four hours of pay for night-time/other work, which appears to be special or overtime pay. These hours are used in the calculation of AWW because they represent actual hours worked under La.R.S. 23:1021(12)(a)(i).

Accordingly, the two weeks of pay at $740.00 plus the two weeks of pay at $772.19 equal four weeks of pay at $1,512.19, which, divided by four, results in an AWW of $378.05. This figure represents Ms. Clay’s averaged actual earnings received by her and taxed in the four full weeks prior to her injury, pursuant to La.R.S. 23:1021(12)(a)(i) and La.R.S. 23:1021(12)®, and pursuant to Hargrave. To the extent that the OWC calculated Ms. Clay’s total AWW at $378.05, we affirm that portion of the OWC judgment.

_k.iv.

CONCLUSION

Based upon the Louisiana Supreme Court’s remand of Ms. Clay’s case to us “for consideration in light of Hargrave v. State, through DOTD, 2010-1044 (La.1/19/11), 54 So.3d 1102”, we find that Ms. Clay’s AWW is $378.05, and we affirm the OWC judgment on that issue.

Costs are assessed to the defendant.

AFFIRMED IN PART ON REMAND.

      . While the calculation of night-time/other pay (shown on the pay stub as "NgtOthr”) is not discussed or examined in the record, Ms. Clay's time-card summary shows that she worked an extra long shift beginning at 3:00 a.m. on June 18, 2005. On her pay stub for June 25, 2005, out of the eighty-seven hours for which she was paid, four hours were designated as "NgtOthr” pay. the juvenile involved in this matter will be used instead of his name.


author: MICHAEL E. KIRBY, Judge.

text:
    STATE of Louisiana in the Interest of C.R.
    No. 2010-CA-1765.
    Court of Appeal of Louisiana, Fourth Circuit.
    Aug. 3, 2011.

      Pascale Belizaire Watson, Juvenile Regional Services, Inc., New Orleans, LA, for Appellant, C.R.
    Leon A. Cannizzaro, Jr., District Attorney, Alyson Graugnard, Assistant District Attorney, New Orleans, LA, for Appellee, State of Louisiana.
    (Court composed of Judge CHARLES R. JONES, Judge JAMES F. McKAY, III, Judge MICHAEL E. KIRBY).
   MICHAEL E. KIRBY, Judge.

hThe Office of the Orleans Parish District Attorney filed a petition alleging C.R. to be delinquent for violating La. R.S. 40:966(E)(1), Possession of Marijuana (count one), and La. R.S. 40:967(0(2), Possession of Schedule II Controlled Dangerous Substance (count two). C.R. denied the petition and filed a motion to suppress both the evidence seized and a statement made by him during his arrest. The trial court denied the motion, and proceeded to the adjudication hearing. At the conclusion of the hearing, the trial court adjudicated C.R. delinquent as charged. The trial court entered a disposition of commitment to the Department of Public Safety and Corrections for a period of six months as to count one and one year as to count two, to run consecutively to each other and concurrently with the disposition rendered in Juvenile Court case number 2010-166-05-DQ-E, an earlier case in which C.R. was also adjudicated delinquent. The court suspended the execution of the commitment and placed C.R. on active probation under the supervision of the Office of Juvenile Justice for two years, |2with the special condition that C.R. attend the Odyssey House Inpatient Drug Treatment Program. C.R. now appeals the adjudication and disposition.

On the night of June 2, 2010, New Orleans Police Department (“NOPD”) Detective Derrick Burmaster and Officer Corey Hymel were dressed in plain clothes and patrolling in a marked police unit around the intersection of Tulane Avenue and South Lopez Street. The “Chat Room,” an abandoned teen club, faced Tulane Avenue and, directly behind it in the 600 block of South Lopez Street, stood an abandoned, fenced-in house. The area was known for illegal drug activity and vagrancy. According to the officers’ testimony, they spotted C.R. and an adult male, later identified as Devin Joseph, by a vehicle parked in front of the abandoned house on South Lopez Street. C.R. was sitting in the rear, driver-side passenger seat with his feet extended out onto the sidewalk; Joseph was standing on the sidewalk beside the vehicle. As the officers passed by, they detected a strong odor of marijuana, emanating from the vehicle, and decided to exit their unit to investigate further. When the two suspects saw the officers approaching on foot, they were startled. Joseph immediately raised his arms and began walking backwards away from the vehicle, shaking his head back and forth, indicating to the officers that he had nothing to hide. C.R., on the other hand, looked down and appeared to be fumbling near his waistband. Fearing that C.R. might have a weapon, Det. Burmaster ordered him to raise his hands, but he refused. Upon reaching the parked vehicle, Det. Burmaster noticed C.R.’s pants zipper was open with his boxer shorts pulled partially through the opening. Det. Burmas-ter ordered |SC.R. to exit the vehicle, but he refused and continued shoving his fingers into the slit in the boxer shorts. Det. Burmaster then removed C.R. from the vehicle, handcuffed him, and escorted him to the police car. While doing so, Det. Burmaster noticed a plastic bag “consistent with marijuana packaging” protruding from the slit in C.R.’s boxer shorts. At that point, Det. Burmaster advised CR that he was under arrest for possession of marijuana and read him his Miranda rights. According to the officers, C.R. then stated, ‘“I’m a juvenile. It’s just weed.’ ” When Det. Burmaster tried to retrieve the plastic bag, C.R. became combative and kept insisting that Det. Bur-master remove the handcuffs so he could get the bag of marijuana himself. During the struggle, the two men fell and C.R. began rolling on the ground to prevent Det. Burmaster from seizing the bag of marijuana. Det.- Burmaster eventually gained control of C.R. and seized the contraband. Upon further search, Det. Bur-master discovered another plastic bag containing two pieces of crack cocaine in C.R.’s boxer shorts.

In the sole assignment of error, C.R. contends that trial court erred in denying his motion to suppress the evidence and the statement because the police officers lacked probable cause to arrest him.

The Fourth Amendment to the United States Constitution and. Art. I, § 5 of the Louisiana Constitution protect people against unreasonable searches and seizures. A search conducted without a warrant issued upon probable cause is per se unreasonable, subject only to a few specifically established and well-delineated exceptions. Schneckloth v. Bustamante, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d L854 (1973); State v. Raheem, 464 So.2d 293, 296 (La.1985). A search incident to a lawful custodial arrest is one of the limited exceptions to the constitutional prohibition of warrantless searches. United States v. Robinson, 414 U.S. 218, 224, 94 S.Ct. 467, 471, 38 L.Ed.2d 427 (1973); State v. Parker, 2006-0053, p. 3 (La.6/16/06), 931 So.2d 353, 355.

A peace officer may, without a warrant, lawfully arrest a person when he has probable cause to believe the person to be arrested has committed an offense. La. C.Cr. P. art. 213. “Probable cause to arrest exists when the facts and circumstances known to the officer, and of which he has reasonable and trustworthy information, are sufficient to justify a man of ordinary caution in the belief that the accused has committed an offense.” Parker, supra, 2006-0053 at p. 2, 931 So.2d at 355.

In reviewing the trial court’s ruling on a motion to suppress, the reviewing court looks to the totality of the evidence presented at the motion to suppress hearing and the trial. State v. Welch, 2011-0274, p. 1 (La.4/29/11), 60 So.3d 603. The trial court is afforded great discretion in ruling on a motion to suppress, and its ruling will not be disturbed absent an abuse of that discretion. Id.

The testimony in this case establishes that the officers were patrolling in an area known for illegal drug activity and vagrancy when they observed the suspects and the parked vehicle in front of the abandoned house. While driving along South Lopez Street, the officers detected a strong odor of marijuana, emanating from the parked vehicle. At that point, the officers had reasonable cause to believe that IsC.R., who was sitting in the vehicle, had committed an offense. The strong odor of marijuana, combined with the suspects’ disparate reactions upon seeing the approaching officers, clearly provided the officers with sufficient probable cause to arrest C.R. Thus, the search and seizure of the contraband incident to the lawful arrest were valid. Likewise, because the officers had probable cause to arrest C.R., the statement he made voluntarily, after being advised of his Miranda rights, was admissible.

Considering the totality of the evidence presented at the adjudication hearing, we find the trial court did not abuse its discretion in denying the motion to suppress both the evidence seized and the statement made by C.R. a result of his arrest.

Accordingly, the September 14, 2010 judgment of the trial court, adjudicating C.R. delinquent, is affirmed.

AFFIRMED

      . Pursuant to Rules 5-1 and 5-2 of the Uniform Rules — Courts of Appeal, the initials of

      . Cf. State v. Arnold., 2011-0626, p. 2 (La.4/27/11), 60 So.3d 599, 600; State v. Allen, 2010-1016, p. 1 (La.5/7/10), 55 So.3d 756; State v. Waters, 2000-0356, p. 7 (La.3/12/01), 780 So.2d 1053, 1058. (The Supreme Court held that the odor of marijuana emanating from a vehicle provided police officers with sufficient probable cause to conduct a warrantless search of the vehicle.)


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

text:
    STATE of Louisiana v. Patsy Ford BAKER.
    No. 2011-KA-0024.
    Court of Appeal of Louisiana, Fourth Circuit.
    Aug. 10, 2011.

      Leon A. Cannizzaro, Jr., District Attorney, Scott G. Vincent, Assistant District Attorney, New Orleans, LA, for State of Louisiana, Appellee.
    Edward R. Greenlee, Louisiana Appellate Project, LaPlace, LA, for Defendant/Appellant.
    (Court composed of Judge TERRI F. LOVE, Judge MAX N. TOBIAS, JR., Judge PAUL A. BONIN).
   MAX N. TOBIAS, JR., Judge.

hThe defendant, Patsy Ford Baker (“Baker”), argues in her appeal that her guilty plea, and subsequent sentence, to the charge of looting should be reversed because the state took beyond the period of time allowed to bring its case against her to trial, thus violating La.C.Cr.P. art. 578. The state argues in response that Baker’s conviction and sentence should be affirmed because the applicable time period for bringing its case to trial was interrupted by Baker’s failure to appear in court on 25 September 2006 after she was given in-court notice of the hearing on 15 September 2006. For the reasons that follow, we find the defendant’s arguments lack merit and thus affirm her conviction and sentence.

The record on appeal indicates that on 24 May 2006, Susan Allain observed Baker driving out of the Allain dwelling driveway at 3380 Jefferson Avenue in New Orleans. Ms. Allain followed the defendant in her car and notified the police. The police stopped the defendant at the corner of South Claiborne Avenue and Fern Street and found her to be in possession of numerous items belonging to Ms. Allain. The police report indicates that Ms. Allain identified the items as her own, and told the police that the items had been in her home the last time she had been there. Ms. Allain estimated the value of the stolen items to be approximately 12$3,000.00. Further, Ms. Allain identified Baker to the police as the person seen leaving her driveway.

On 25 July 2006, the state charged Baker by bill of information with one count of violating La. R.S. 14:62.5, relative to looting. On 3 August 2006, Baker (a) appeared in open court and was arraigned; (b) pled not guilty to the charge, and (c) was “notified in court” of a hearing to determine counsel to be held on 15 September 2006. On 15 September 2006, Baker appeared before the trial court for a hearing to determine counsel. At the close of the hearing, the trial court set both a “status hearing” for 25 September 2006 and an additional hearing to determine counsel for 13 October 2006; the official minute entry indicates that Baker was notified in open court of both hearing dates.

The official minute entry for 25 September 2006 indicates that Baker failed to appear for the “status hearing.” The trial court issued an alias capias for Baker’s arrest and scheduled a bond forfeiture hearing for 13 October 2006. Baker again failed to appear on 13 October 2006, and the trial court declared her bond forfeited.

Baker was subsequently arrested on 10 March 2010. On 16 March 2010, she appeared in court. The court appointed the Public Defender’s Office to represent her and scheduled a motion date of 29 April 2010. On 29 April 2010, Baker appeared in court and her counsel moved for a continuance. On 8 June 2010, Baker filed a motion to quash the bill of information, arguing that the state had |staken beyond the period of time allowed to bring its case against her to trial, thus violating La. C.Cr.P. art. 578. The state opposed the motion on the basis that the applicable time period for bringing its case to trial was interrupted by Baker’s failure to appear for the 25 September 2006 status hearing for which Baker received an actual in-court notice thereof at the 15 September 2006 hearing.

The trial court held a hearing on the motion to quash on 24 June 2010 and denied the motion. Baker elected to plead guilty to the charge pursuant to State v. Crosby, 338 So.2d 584 (La.1976). The trial court accepted her plea and sentenced her to two years’ incarceration (with credit for time served), which it deferred pursuant to La.C.Cr.P. art. 893, and then placed her on two years active probation on the condition that she pay $250.00 to the judicial expense fund of the Criminal District Court, be subject to random drug testing, and perform 100 hours of community service. This timely appeal followed.

ERRORS PATENT

A review of the record reveals no errors patent.

ASSIGNMENT OF ERROR NUMBER 1

In her sole assignment of error, Baker argues that the trial court erred when it denied her motion to quash the bill of information. Specifically, she argues that her guilty plea and subsequent sentence should be reversed because the state took beyond the period of time allowed by law to bring its case against her to trial, thus violating La.C.Cr.P. art. 578. The state argues in response that Baker’s conviction and sentence should be affirmed because the applicable time period for bringing its case to trial was interrupted by the defendant’s failure to appear in court on 2514September 2006 after she was given in-court notice on 15 September 2006 that a subsequent matter in her case, a status hearing, was to be held on 25 September 2006. Baker questions whether she received actual notice of the 25 September 2006 hearing. The official minute entry from the 15 September 2006 indicates that Baker was given the notice in court.

We find the state’s argument has merit and that the trial court did not err by denying the defendant’s motion to quash. La.C.Cr.P. art. 536 provides that a motion to quash shall be in writing, signed by the defendant or the defendant’s attorney, filed in open court or in the office of the clerk of court, and shall specify the grounds upon which it is based. An article 532 motion may be based, among other things, upon an assertion that the time limitation for the commencement of trial has expired. In the present case, Baker’s motion to quash asserts that dismissal of the state’s case is warranted because the state failed to bring its case against her within the time limitations established by La.C.Cr.P. arts. 578.

La.C.Cr.P. art. 578 provides that trial in a non-capital felony case must commence within two years of the date of the institution of prosecution. In this case, the state filed its bill of information on 25 July 2006. The trial court denied the defendant’s motion to quash, and accepted her guilty plea on 10 June 2010. When a defendant brings an apparently meritorious motion to quash based on prescription, the state bears a heavy burden to demonstrate either an interruption or a suspension of the time limit such that prescription will not have tolled. State v. Rome, 93-1221 (La.1/14/94), 630 So.2d 1284, 1286.

La.C.Cr.P. art. 579 governs interruptions and provides:

A. The period of limitation established by Article 578 shall be interrupted if: lfi(l) The defendant at any time, with the purpose to avoid detection, apprehension, or prosecution, flees from the state, is outside the state, or is absent from his usual place of abode within the state; or
(2) The defendant cannot be tried because of insanity or because his presence for trial cannot be obtained by legal process, or for any other cause beyond the control of the state; or
(3) The defendant fails to appear at any proceeding pursuant to actual notice, proof of which appears of record.
B. The periods of limitation established by Article 578 shall commence to run anew from the date the cause of interruption no longer exists. [Emphasis supplied.]

Based upon the facts as stated above and according to La.C.Cr.P. art. 579, the state then had two years from 10 March 2010, or until 10 March 2012, to commence a trial against the defendant.

In State v. Romar, 07-2140 (La.7/1/08), 985 So.2d 722, a defendant who was wanted on an outstanding warrant for a third offense of operating a motor vehicle while intoxicated reappeared in court eight years later, following his arrest on another charge of operating a motor vehicle while intoxicated, and execution of the open attachment. The defendant moved to quash on the grounds that the time limits for bringing the case to trial had expired. The trial court granted the motion; the state appealed and the First Circuit affirmed. State v. Romar, 07-0789, unpub. (La.App. 1 Cir. 10/3/07), 966 So.2d 826 (Table). The Supreme Court ruled that the applicable time limitations were interrupted when the defendant failed to appear for trial after having received actual in-court notice. Romar, 07-2140, p. 6, 985 So.2d at 726. The Court held that under the circumstances, the state had no obligation to go out and search for the defendant. Romar, 07-2140, p. 7, 985 So.2d at 727.

| fiLike the defendant in Romar, Baker received actual notice on 15 September 2006 of both the 25 September 2006 status hearing and the 13 October 2006 hearing to determine counsel (evidenced by the minute entry of that date which indicates that the “defendant was notified in court”). Baker was required to appear at both the 25 September 2006 status hearing and the 13 October 2006 hearing to determine counsel. Accordingly, the applicable time limitation under La.C.Cr.P. art. 578 was interrupted by Baker’s failure to appear for the September 25, 2006 status hearing and again interrupted by her failure to appear on 13 October 2006 for the hearing to determine counsel. The trial court properly denied the defendant’s motion to quash.

CONCLUSION

For the foregoing reasons, we affirm the conviction and sentence of Baker.

AFFIRMED.

      . We understand that in the context of a proceeding in Criminal District Court, when the "defendant was notified in court” means that the defendant is personally expected to appear at any subsequent matter for which a specific date is set.


author: JOAN BERNARD ARMSTRONG, Chief Judge.

text:
    STATE of Louisiana v. Akeem A. JOSEPH and Roy D. Patterson.
    No. 2010-KA-1090.
    Court of Appeal of Louisiana, Fourth Circuit.
    Aug. 12, 2011.

      Leon A. Cannizzaro, Jr., District Attorney, Matthew Caplan, Assistant District Attorney, New Orleans, LA, for State of Louisiana, Appellee.
    Mary Constance Hanes, New Orleans, LA, for Defendant/Appellant, Roy D. Patterson.
    John Harvey Craft, Louisiana Appellate Project, New Orleans, LA, for Defendant/Appellant, Akeem Joseph.
    (Court composed of Chief Judge JOAN BERNARD ARMSTRONG, Judge MICHAEL E. KIRBY, Judge TERRI F. LOVE).
   JOAN BERNARD ARMSTRONG, Chief Judge.

^STATEMENT OF CASE

The defendants, Akeem A. Joseph (hereinafter “Joseph”) and Roy D. Patterson (hereinafter “Patterson”), were charged by bill of information filed on May 7, 2009 with one count each of armed robbery while armed with a handgun. Both men entered a not guilty plea on May 12, 2009. A motion hearing began on November 12, 2009 and concluded on January 5, 2010. The district court found probable cause and denied the motions to suppress the evidence and identification as to both defendants. On March 17, 2010, the state filed a motion and order to invoke the additional sentencing provision of La. R.S. 14:63.3(A), which was granted by the district court. They were tried jointly by a jury on March 18, 2010, and both defendants were found guilty as charged. A motion for mistrial was denied. Both defendants were sentenced on April 1, 2010. Joseph was sentenced to serve twenty-five years at hard labor, to run concurrently with the sentences imposed in cases 489-054 and 492-639, and with any other sentence he may be serving.

12Patterson was sentenced to serve twenty-five years at hard labor, to run concurrently with any other sentence he may be serving. Each defendant’s motion for appeal was granted; Patterson’s motion to reconsider sentence was denied. A multiple bill charging Patterson as a second felony offender was filed. On June 18, Patterson was adjudicated a second felony offender. After vacating the previous sentence imposed, the district court resen-tenced him to serve fifty years at hard labor. Patterson’s motion to reconsider sentence was denied; his motion for appeal was granted.

STATEMENT OF FACT

On March 5, 2009, the victim, Gerald Joseph (no apparent relation to the defendant, Akeem Joseph), boarded public transportation en route to a friend’s home on St. Peter Street. He exited the trolley at Canal and Broad Streets. A woman and a man (the defendant, Joseph) exited the trolley at the same time; the man met up with another man (the defendant, Patterson) and a woman on the street. The men followed the victim (hereinafter referred to sometimes by his first name, “Gerald” in order to distinguish him from the defendant of the same last name) into a convenience store, where he purchased some snacks. Upon exiting the store, the smaller of the two men (Patterson) asked Gerald whether he had change for a ten, and he responded that he only had twenties. Gerald proceeded to walk through the parking lot at AutoZone. As he approached the second block of St. Peter Street, he heard footsteps. When Gerald turned around, Joseph ran up to him, put a gun directly in his face, and told him to empty his pockets; Patterson |stook everything from Gerald’s pockets. After robbing Gerald, Joseph and Patterson ran down South White Street.

Gerald proceeded to his friend’s house on St. Peter Street, where he called 911. Officer Sam and his partner, Officer Carter, were dispatched to the 2800 block of St. Peter Street. When they arrived in the area, they were flagged down by the victim. The victim gave a description of the suspects and the direction of their flight that was broadcast over the radio by dispatch. Officers Sam and Carter proceeded in that direction. While en route, Detective Baldwin advised via radio that he had just observed two subjects fitting the description enter the Discount Zone on North Broad Street. Detective Baldwin and his partner waited in the parking lot until backup arrived, and all of the officers entered the store together. The two subjects were detained and placed in the back of separate police vehicles. Once Gerald arrived at the scene, he identified the two men separately as the two men who robbed him; Joseph as the man armed with the gun, and Patterson as the man who took the money from his hands.

Joseph and Patterson were arrested and advised of their Miranda rights. In the search incident to the subjects arrest, Officer Sam found in Joseph’s pockets an ammunition clip and $143.00 in cash; Patterson had $60.00 in cash. No weapon was found.

At trial the clothing worn by the two men upon their arrest was identified: Joseph’s clothes consisted of jeans, long sleeve white t-shirt, black tennis shoes, and a baseball cap. Patterson’s clothes consisted of a white t-shirt, long white |4socks, thermal underwear, and black, Crock-like shoes. The victim at trial stated that Patterson was also wearing a colorful hoodie.

Patterson’s Aunt Hattie testified that she raised Patterson and that he lived with her at 825 North White Street. She also noted that he was paid an allowance of $100.00 per month and that he did not work. On the day of the robbery, she stated that she, Patterson, her sisters, and a couple of nieces and nephews were playing cards on the upstairs porch of the house. Patterson’s friend, Joseph, came to the house later that day. Joseph’s girlfriend was already downstairs at the house. Patterson and Joseph walked to the store around the corner. Aunt Hattie became worried when they did not return from the store after a few minutes so she sent her nephews to go see what was keeping them. When the nephews returned, she learned that the police were detaining the two men. Aunt Hattie denied ever seeing Patterson with a gun. She stated that he was not wearing a hoodie, specifically noting that he does not wear jackets. She did say that Patterson wore long underwear.

Lionel, Patterson’s cousin, also lived on North White Street. He stated that Patterson was living with them since getting out of jail. On the day of the robbery, Lionel stated that he, Patterson, and Joseph’s girlfriend were downstairs smoking, and that they were “chiefed out.” When Joseph arrived, Patterson and Joseph walked to the store to buy a cigar. While they were gone, Lionel observed police vehicles slowly circling the area. Because of this, he decided to go check on his cousin. When he got to the gas station, the police were detaining Patterson and |,5Joseph in a police vehicle. Lionel stated that he walked up to the police vehicle and asked what was going on, and he told the police that Patterson was his cousin. At some point he was informed that his cousin was suspected of a robbery. Lionel stated that he never saw his cousin with a gun.

ERRORS PATENT

A review of the record reveals two errors patent. First, the district court failed to sentence the defendants to a mandatory additional five years imprisonment pursuant to La. R.S. 14:64.3(A). Thus, the sentence is illegally lenient.

The record shows that the state filed a Motion and Order to Invoke the Additional Sentencing Provision of La. R.S. 14:64.3(A) as to each defendant. The Motion was granted by the district court on March 17, 2010. (R. 90-93). The district court mentioned the Motion during the sentencing of Joseph and noted that the minimum sentence he could receive was fifteen years. It then imposed a sentence of twenty-five years at hard labor. No mention of the Motion was made during the sentencing of Patterson.

La. R.S. 14:64.3(A) states:

When the dangerous weapon used in the commission of the crime of armed robbery is a firearm, the offender shall be imprisoned at hard labor for an additional period of five years without benefit of parole, probation, or suspension of sentence. The additional penalty imposed pursuant to this Subsection shall be served consecutively to the sentence imposed under the provisions of R.S. 14:64.

| fiIn an unpublished opinion, this Court remanded the matter to the district court for imposition of the additional five-year sentence. State v. Hayes, unpub., 2007-1280 (La.App. 4 Cir. 5/28/08), 983 So.2d 1033, writ denied, 08-1744 (La.4/3/09), 6 So.3d 768. However, unlike here, Hayes received only the minimum sentence under La. R.S. 14:64.

In State v. Burton, 09-0826 (La.App. 4 Cir. 7/14/10), 43 So.3d 1073, writ denied, 10-1906 (La.2/11/11) 56 So.3d 999, this Court held that in cases where minimum sentences are not imposed, the sentences are indeterminate, requiring the sentences to be vacated and the matter remanded for resentencing according to law for clarification of whether the defendant’s sentence includes any additional punishment under La. R.S. 14:64.3. Thus, Joseph’s twenty-five year sentence should be vacated and remanded for resentencing.

Patterson also received an initial twenty-five year sentence; however, that sentence was vacated when he was resen-tenced as a multiple offender to serve fifty years at hard labor. Under La. R.S. 15:529.1, the minimum sentence Patterson could receive as a second felony offender was forty-nine and one-half years. Because his fifty-year sentence exceeds the statutory minimum by six months, i.e., less than five years, Patterson’s sentence must also be vacated and remanded for resen-tencing.

Second, the district court failed to restrict parole eligibility on either defendant’s sentence as required by La. R.S. 14:64. Although the district court [ 7neglected to restrict parole eligibility on the sentences, La. R.S. 15:301.1(A) self-activates the correction and eliminates the need to remand for a ministerial correction of the sentence. State v. Williams, 00-1725 (La.11/28/01), 800 So.2d 790.

PRO SE ASSIGNMENT OF ERROR NUMBER 1

By this assignment of error, Joseph asserts that the evidence is insufficient to support his conviction. When issues are raised on appeal as to the sufficiency of the evidence and as to one or more trial errors, the reviewing court should first determine the sufficiency of the evidence. State v. Hearold, 603 So.2d 731, 734 (La.1992). State v. Marcantel, 00-1629, p. 8 (La.4/3/02), 815 So.2d 50, 55. Therefore, this assignment of error will be considered first.

In State v. Brown, 03-0897, p. 22 (La.4/12/05), 907 So.2d 1, 18, the Court set forth the standard for determining a claim of insufficiency of evidence:

When reviewing the sufficiency of the evidence to support a conviction, Louisiana appellate courts are controlled by the standard enunciated in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). Under this standard, the appellate court “must determine that the evidence, viewed in the light most favorable to the prosecution, was sufficient to convince a rational trier of fact that all of the elements of the crime had been proved beyond a reasonable doubt.” State v. Neal, 00-0674, (La.6/29/01), 796 So.2d 649, 657 (citing State v. Captville, 448 So.2d 676, 678 (La.1984)). See also State v. Sykes, 04-1199 (La.App. 4 Cir. 3/9/05), 900 So.2d 156.

|Jn this case, Joseph was charged with and convicted of one count of armed robbery with a firearm. Armed robbery is defined by La. R.S. 14:64 as “... the taking of anything of value belonging to another from the person of another or that is in the immediate control of another, by use of force or intimidation, while armed with a dangerous weapon.”

Joseph does not dispute that he robbed Gerald. Rather he argues that he was armed only with an empty gun magazine that Gerald mistakenly thought was a gun, and he notes that no gun was found by the police. He urges that the evidence presented by the state only proves that he committed the crime of first-degree robbery, La. R.S. 14:64.1, as he only led Ger-aid to believe that he was armed with a dangerous weapon.

At trial, Gerald testified that Joseph ran up to him, put a gun directly into his face, and told him to empty his pockets. Joseph and Patterson stole everything from his pockets. Gerald was certain of his identification of Joseph and Patterson as the perpetrators of the armed robbery.

The testimony of an eyewitness that establishes all the elements of the offense, coupled with an identification of the defendant as the perpetrator, ordinarily is sufficient to support a conviction. State v. Banks, 96-652, 96-658 (La.App. 5 Cir. 1/15/97), 694 So.2d 401. Here, Gerald’s testimony establishes all of the elements of the offense, and his identification of Joseph was absolute. The jury apparently found Gerald’s testimony credible. Thus, viewing the evidence in the light most favorable to the prosecution, the jury reasonably found that Joseph was Rguilty of armed robbery with a firearm. See also State v. Oliver, 526 So.2d 895 (La.App. 4 Cir.1988), where this Court found that the evidence was sufficient to support the defendant’s convictions for armed robbery even though the gun used in the armed robbery was never found. This assignment of error is without merit.

PRO SE ASSIGNMENT OF ERROR NUMBER 2

By this assignment of error, Joseph asserts that La.C.Cr.P. art. 782(A) is unconstitutional insofar as it allows for non-unanimous verdicts in non-capital felony cases. Notably, the jury verdict in this case was unanimous. Joseph therefore lacks standing to raise the issue as there is nothing to show that he was actually harmed by the purported error. Furthermore, the record does not reflect that Joseph objected, therefore, Joseph’s constitutional challenge to La.C.Cr.P. art. 782 is procedurally barred from review by this court. La.C.Cr.P. art. 930.4.

Even assuming that this issue was properly preserved for review, this Court has found the argument to be without merit on several occasions. See State v. Barbour, 09-1258 (La.App. 4 Cir. 3/24/10), 35 So.3d 1142, writ denied, 10-0934 (La.11/19/10), 49 So.3d 396, cert. denied, Barbour v. Louisiana, - U.S. -, 131 S.Ct. 1477, 179 L.Ed.2d 302 (2011); and State v. Taylor, 09-0041 (La.App. 4 Cir. 9/4/09), 21 So.3d 421; both following State v. Bertrand, 08-2215, 08-2311 (La.3/17/09), 6 So.3d 738.

I ^ASSIGNMENT OF ERROR BY COUNSEL FOR JOSEPH AND PATTERSON

Both defendants argued through counsel that the district court erred by denying the motion for mistrial after the state brought the defendants’ post-Miranda silence to the jury’s attention in contravention of Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976). Patterson’s post-Miranda silence was brought up on two occasions; Joseph’s silence was brought up once.

Regarding Patterson, the first occasion occurred during the direct examination of Officer Sam when the state asked the officer whether Patterson made any statements to the officer and whether Patterson said anything about being at his aunt’s house or that he was just going to the gas station. Officer Sam replied in the negative. Counsel objected, and the objection was sustained.

The second occasion for Patterson also included Joseph, and it occurred during the testimony of Officer Carter. Officer Carter was asked whether either of the defendants made a statement to her. Both attorneys objected before the officer responded, and their objections were sustained.

Following Officer Carter’s testimony, the jury retired to the jury lounge. Both attorneys then moved for a mistrial, arguing that the state impermissibly brought attention to the defendants’ exercise of their right to remain silent post-Miranda through its questioning of the officers.

The trial court denied the motion, noting that one of the defendants intended to present an alibi defense and reasoned that the state’s questioning was apparently intended to show whether anything was said by the defendant regarding his alibi. |nIt then admonished the state to cease that line of questioning because the state knew that no statements had been made by either defendant. Both defense attorneys objected to the court’s ruling; neither requested an admonishment of the jury.

However, following the close of testimony, and before closing arguments, Patterson’s attorney proposed a special jury instruction to which the trial court agreed. Following closing arguments, the trial court instructed the jury in relevant part as follows:

You must consider only evidence which was admitted during the trial. You may not consider evidence which you were instructed to disregard or to which an objection was sustained.
Additionally, upon arrest, each defendant was advised of his rights to remain silent. No presumption of any kind may be raised, and no inferences of any kind may be drawn from the fact that the defendants chose to exercise their constitutional rights to remain silent.

Under La.C.Cr.P. article 771, when the prosecutor or a witness makes a reference to a defendant’s post-arrest silence, the trial court is required, upon the request of the defendant or the State, to promptly admonish the jury. In such cases where the trial court is satisfied that an admonition is not sufficient to assure the defendant a fair trial, the court may grant a mistrial upon motion of the defendant. State v. Kersey, 406 So.2d 555, 559 (La.1981). The granting of a mistrial is within the discretion of the trial court if the trial court is satisfied that an admonition is not sufficient to assure the defendant a fair trial. State v. Procell, 365 So.2d 484, 491 (La.1978).

[12In Doyle v. Ohio, the United States Supreme Court addressed the issue of whether a prosecutor could seek to impeach a defendant’s exculpatory account, offered for the first time at trial, through his failure to offer the statement at the time of his arrest after receiving Miranda warnings. The Court held that the use, for impeachment purposes, of a defendant’s silence after receiving Miranda warnings at the time of arrest, violates the Due Process Clause of the Fourteenth Amendment.

Both counsel for Joseph and Patterson liken their clients’ case to that of State v. Montoya, 340 So.2d 557 (La.1976). In Montoya, the defendant, like here, did not take the stand. During direct examination of the arresting officer, the state asked the officer if the officer had asked the defendant, after he was arrested, where he had gotten the drugs. The officer responded that he did ask, but the defendant did not answer. The defense objected to the question, but did not move for a mistrial. The record did not indicate whether the judge admonished the jury. On appeal, the court in Montoya found that the reference to defendant’s silence after arrest was reversible error in that it violated the defendant’s constitutional right to remain silent under Miranda. In Montoya, the court never mentioned La.C.Cr.P. art. 771, nor, did it mention a case that it decided just prior to Montoya, State v. Smith, 336 So.2d 867 (La.1976).

In Smith, the prosecutor, in summarizing a police officer’s testimony on direct examination, stated that the defendant had refused to give a statement while under custodial arrest. The Louisiana Supreme Court found that the statement [ ismade by the prosecutor was “incidental and inadvertent” and there was no “indication of the deliberate intent of the state to inject or exploit the issue,” and thus, the trial court did not err in denying the defendant’s motion for a mistrial. The court noted further that a brief remark to post-Miranda silence does not mandate a mistrial or reversal where the trial as a whole was fairly conducted, the proof of guilt is strong, and the state made no use of the silence for impeachment. Notably, in Montoya, other errors compounded the state’s reference to the defendant’s silence; the state implicitly referred to the defendant’s failure to testify, and a reference to “unexplained possession” was made in the jury instruction.

In the case at hand, the record shows that the trial as a whole was conducted fairly and that the evidence in favor of a guilty verdict was overwhelming. Thus, this case may be distinguished from Montoya. After being reprimanded, the prosecutor made no further references to the defendants’ post-arrest silence. Further, unlike in Montoya, the jury was read a special jury instruction as requested by the defense.

In Greer v. Miller, 483 U.S. 756, 107 S.Ct. 3102, 97 L.Ed.2d 618 (1987), a case cited by the state, the Court held that the Doyle rule was not violated where the lower court sustained the objection to the state’s question touching upon the defendant’s postarrest silence; no further questioning or argument with respect to silence occurred; and the court specifically instructed the jury, as here, that it should disregard any questions to which an objection was sustained. In Greer, the prosecutor asked the defendant on cross-examination, “why didn’t you tell this story to anybody when |14ycm got arrested?” See also State v. Varnado, 97-2823 (La.App. 4 Cir. 5/19/99), 737 So.2d 240, where this Court found that a mistrial was not warranted despite the state’s questioning of a detective as to whether the defendant made a statement after his arrest. One of the factors considered by the court was the fact that the lower court instructed the jury that the defendant was not required to make any statements and that his silence should not be held against him.

Here, the question asked by the state during Officer Carter’s testimony, as to whether either defendant made a statement, does not warrant a mistrial insofar as Joseph is concerned. Though the questioning of Officers Sam and Carter regarding whether Patterson, made a statement was more egregious, we find that a mistrial is likewise not warranted. The district court immediately sustained counsel’s objections. The state ceased the line of questioning after being reprimanded, and no argument with respect to silence was made. As in Greer and Vamado, a special jury instruction was given to the jury regarding post-arrest silence. Moreover, any error that may have occurred was harmless as the error was not attributable to the verdict. Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). This assignment of error is without merit.

For the foregoing reasons, we affirm the convictions of both defendants and vacate both defendants’ sentences and remand for resentencing.

CONVICTIONS AFFIRMED; SENTENCES VACATED AND REMANDED FOR RESENTENCING