author: JUDE G. GRAVOIS, Judge.

text:
    Depp T. TROXLER v. Melinda Hunt BREAUX.
    No. 12-CA-330.
    Court of Appeal of Louisiana, Fifth Circuit.
    Nov. 27, 2012.

      Leon C. Vial, III, Attorney at Law, Hahnville, LA, for Plaintiff/Appellant.
    Thomas G. Donelon, Attorney at Law, Metairie, LA, for Defendant/Appellee.
    Panel composed of Judges SUSAN M. CHEHARDY, JUDE G. GRAVOIS, and MARC E. JOHNSON.
   JUDE G. GRAVOIS, Judge.

12Appellant, Depp Troxler, has appealed a trial court judgment rendered in this domestic dispute on November 15, 2011. For the reasons that follow, we affirm.

FACTS

On July 16, 2010, Depp Troxler filed suit against appellee, Melinda Breaux, alleging that he was evicted from a home in which he and Ms. Breaux had lived; that the home was jointly owned; that Ms. Breaux’s actions constituted fraud; and that he was “entitled to receive his one-half interest in the property together with the items of furniture and fixtures in the house for which he paid personally or in the alternative, that defendant be condemned to pay the plaintiff for his one-half interest in the value of the house and contents.” Ms. Breaux answered the petition, denying that Mr. Troxler had any ownership interest in the house, alleging that she had purchased the home on her own. She admitted she had borrowed $10,000 from Mr. Troxler that she still owed him, and asserted she had attempted to repay him, but he had refused her offer of payment. She further admitted that he may also be entitled to the return of certain furniture and appliances that had been purchased for the home. Ms. Breaux further alleged that money deposited by Mr. |sTroxler into the joint account they maintained was actually used to pay bills incurred by the household during the time they lived together.

Prior to trial, the parties stipulated that the house and property in question was in Ms. Breaux’s name alone and belonged to her, and that Mr. Troxler had loaned Ms. Breaux $10,000, which was still owed by her.

At trial, both parties testified and confirmed that in December 2008, Ms. Breaux purchased a home in Hahnville, Louisiana, and that they had lived together in this home from December 2008 until October 2009. Mr. Troxler testified that he was working in Alaska during this time period and actually lived in the home for only a total of four months. Ms. Breaux agreed that Mr. Troxler was working in Alaska during that time, but testified that he was at the home for more than four months during that time. She admitted that he worked only one six-week period in Alaska during that time, and that at all other times, he worked only two- or three-week periods in Alaska, followed by comparable time off which he spent at the home in Hahnville.

The parties also agreed that in 2008, they converted Ms. Breaux’s separate checking account into a joint account. Mr. Troxler testified that he deposited $4,000 into this account on November 25, 2008 to pay bills and expenses for the home. They further agreed that they both deposited funds into this account over the next ten months and that the household expenses were paid out of this account. These expenses included the mortgage note on the house, and the cable, telephone, electricity, gas, and water bills for the house. Mr. Troxler explained that their banking was done on-line and that they would communicate with each other while he was working in Alaska. He testified that Ms. Breaux would regularly tell him how much money she needed and he would give her permission to transfer these amounts into the joint checking account from his separate account. Mr. Troxler |4submitted a list of on-line transfers from his separate account to the joint account and deposits that he made to the joint account, which transfers and deposits totaled $33,219.35. He went through the bank statements of the joint account from December 2008 until October 2009 and specifically identified which deposits he made into the account and which deposits were made by Ms. Breaux.

Mr. Troxler further testified that during this time, he also purchased various items with his separate funds for the house, including a refrigerator, a washer and dryer, furniture (consisting of bunk beds), lawn equipment, an air compressor, pots and pans, decorative items, and other miscellaneous items. He stated that all of these items were still in the house when he was evicted from the house in October 2009. When he left, he did not take any of these items with him; he took only his personal items with him at that time. He testified that the mortgage note on the house was paid from the joint account from December 2008 until September 2009.

On cross-examination, Mr. Troxler testified that he lived at this home with Ms. Breaux when he was not in Alaska. He admitted that he did not live anywhere else during this time. He stated that during the ten months that he lived in the house, everything he bought went into the house. He did not, however, have any receipts for any of the items he claims he purchased for the home. He admitted that Ms. Breaux had offered to repay him the $10,000 loan he had made to her.

Ms. Breaux testified that Mr. Troxler had loaned her $10,000 that she had not yet paid back. She admitted that Mr. Troxler had purchased items for the house, including a washer and dryer, beds, lawn equipment, and an air compressor, all of which were still at the home. She stated that she had offered all of these items to him. She testified that she no longer had the refrigerator that had been purchased by Mr. Troxler; it broke down and she had to purchase a new one to replace it. She testified that Mr. Troxler did not purchase any pots and pans for the Rhome; rather, the pots and pans in the home were the ones that she had prior to moving into the home. She testified that she did not have possession of any receipts for any of the items that Mr. Troxler claims he had purchased for the home.

At the conclusion of the trial, the parties submitted post-trial memoranda. The court then rendered judgment in the amount of $10,000 in favor of Mr. Troxler and against Ms. Breaux. The judgment further ordered Ms. Breaux to allow Mr. Troxler to retrieve the washer and dryer, bunk beds, lawn equipment, and air compressor from the home. This timely appeal by Mr. Troxler followed.

ASSIGNMENT OF ERROR

The trial court erred in failing to award the plaintiff all of the funds which were spent on behalf of the defendant.

In his only assignment of error, Mr. Troxler argues that he spent a total of $32,770.78 “on the house and furnishing and other living expenses” during the ten-month period from December 2008 until October 2009 that he lived with Ms. Breaux. He contends that during this time period, he was only physically present in the house for four or five months. He states that “his payments were building up her equity position in the house, which she retains, and for which he got no credit.” He contends that the trial court judgment is unreasonable because “she keeps the house and he gets some used furniture and equipment in return.” He argues that “she has been unjustly enriched and he has been prejudiced by that enrichment.” He states that he does not know the condition of the movables in the house and argues that “an equitable solution would be to award [him] a money judgment of $12,000 to $15,000 and allow [her] to keep the movables.”

|fiIn support of his position, Mr. Troxler cites Civil Code article 2298, which provides, in pertinent part:

A person who has been enriched without cause at the expense of another person is bound to compensate that person. The term “without cause” is used in this context to exclude cases in which the enrichment results from a valid juridical act or the law. The remedy declared here is subsidiary and shall not be available if the law provides another remedy for the impoverishment or declares a contrary rule.
The amount of compensation due is measured by the extent to which one has been enriched or the other has been impoverished, whichever is less.

Under Louisiana law, the requisite elements of a claim for unjust enrichment are: (1) an enrichment; (2) an impoverishment; (3) a connection between the enrichment and the impoverishment; (4) an absence of justification or cause for the enrichment and impoverishment; and (5) no other available remedy at law. Pinegrove Elec. Supply Co., Inc. v. Cat Key Const., Inc., 11-660 (La.App. 5 Cir. 2/28/12), 88 So.3d 1097, 1100.

Upon review, we find that Mr. Troxler did not prove the elements of unjust enrichment. The testimony at trial indicates that both parties routinely deposited funds into the joint account and that these funds were used to pay the mortgage note and other expenses, including the cable and utility bills for the home. While it is evident that Mr. Troxler was not present at the home every day during the ten-month period that the parties cohabitated, the number of weeks that he was absent and working in Alaska was not clearly established in the record. Mr. Troxler testified that his belongings were at the house and he was not living anywhere else during this ten-month period. He testified that after he was added to Ms. Breaux’s bank account to make the account a joint account, he deposited $4,000 into the account to pay “bills, whatever we needed” for the house. He testified that their banking was done on the computer, and when he was in Alaska, Ms. Breaux |7“would call me and ask me if it’s okay to transfer the money and I let her do whatever was needed out of my account to the joint account.”

Ms. Breaux readily admits that she still owes the $10,000 loan Mr. Troxler made to her, and that he can come over to her house to pick up the washer and dryer, bunk beds, lawn equipment, and air compressor that he purchased. In his brief, Mr. Troxler states that he does not want these movables because they are three and a half years old and he does not know what their present condition is. However, he cites no law to support his contention that he is entitled to a money judgment in place of these items. Further, Ms. Breaux testified that in December 2009, she offered to pay Mr. Troxler the $10,000 she owes him and to divide the items that they had accumulated together. She testified that he refused this offer. During the trial, Mr. Troxler testified about several charges he made on his debit card for purchases from various retailers that he claims were for items purchased for the home; however, he did not have any receipts to identify what items were purchased at these retailers.

The applicable standard of appellate review of the factual findings of the trial court is the manifestly erroneous or clearly wrong standard. Under this standard, in order to reverse a trial court’s finding, an appellate court must conduct a two-part inquiry: (1) the court must find from the record that a reasonable factual basis does not exist for the finding of the trier of fact; and (2) the court must further determine the record establishes the finding is clearly wrong. S.J. v. Lafayette Parish Sch. Bd., 09-2195 (La.7/6/10), 41 So.3d 1119, 1127-28; Stobart v. State, Dep’t of Transp. and Development, 617 So.2d 880, 882 (La.1993). The issue to be resolved by the appellate court is not whether the trier of fact was right or wrong, but whether the factfinder’s conclusion was reasonable. Id. If the factual findings are reasonable in light of the record reviewed in its entirety, a reviewing IsCourt may not reverse even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Id. Accordingly, where there are two permissible views of the evidence, the factfinder’s choice between them cannot be manifestly erroneous. Id. When applying the manifestly erroneous/clearly wrong standard to the findings of the trial court, appellate courts must continually keep in mind that their initial review function is not to decide factual issues de novo. Rosell v. ESCO, 549 So.2d 840, 844 (La.1989). Credibility determinations of the trier of fact are subject to the utmost deference under the manifest error/clearly wrong standard. Theriot v. Lasseigne, 93-2661 (La.7/5/94), 640 So.2d 1305. Consequently, if the trial court’s decision is reasonable in light of the record reviewed in its entirety, the court of appeal may not reverse even though the appellate court would have weighed the evidence differently. Rosell, supra.

Mr. Troxler argues that the trial court’s findings of the amount he paid towards movables and living expenses for the home during his period of cohabitation with Ms. Breaux is unreasonable, given that he actually lived there for only four or five months. However, Mr. Troxler’s own testimony confirms that he allowed Ms. Breaux to transfer funds from his separate account into the joint account for whatever household expenses she deemed necessary. There was no testimony from Mr. Troxler as to which specific expenses Ms. Troxler incurred for the house during this time period were unreasonable. Further, all of Mr. Troxler’s belongings were at the home during the time period when he was absent, and all of the fixed expenses of the home, such as the house note, cable bills and utility bills, had to be paid whether or not Mr. Troxler was physically present at the house. It is reasonable to conclude that during the time period when Mr. Troxler was physically present in the home, food and other consumables had to be purchased for his consumption and use.

|9Mr. Troxler also argues that his payments increased Ms. Breaux’s equity in the house; however, no documents were presented in the trial court to support this argument. Mr. Troxler testified that pots, pans and decorative items for the house were purchased at various retailers; however, he produced no receipts or other documentation to support this testimony. The exact amount of time Mr. Troxler actually spent at the house is not clear from the record, but both parties agree that Mr. Troxler was working in Alaska at the time and was gone for several weeks at a time. Thus, the trial court’s finding that Mr. Troxler resided at the residence for approximately half of the ten-month period from December 2008 until October 2009 is not clearly wrong.

In his reasons for judgment, the trial judge stated that the house note for the property was approximately $2,000 per month and $20,000 of the deposits during the ten-month period of cohabitation went to pay this expense. This finding is supported by the bank statements of the joint account which were admitted into evidence. The trial judge further found that the “remaining total of deposits during this time period was not an unreasonable amount to pay the other household expenses and purchase consumables.”

Our review of the record in this case in its entirety indicates that the trial court’s findings were reasonable and are supported by the record.

CONCLUSION

For the foregoing reasons, the judgment of the trial court under review is affirmed.

AFFIRMED


source: Caselaw Access Project

author: SUSAN M. CHEHARDY, Judge.

license: Public Domain

text:
    LEXINGTON INSURANCE COMPANY v. TASCH, INC.
    No. 12-CA-339.
    Court of Appeal of Louisiana, Fifth Circuit.
    Nov. 27, 2012.

      Ezra L. Finkle, Attorney at Law, New Orleans, LA, for Plaintiff/Appellant, Lexington Insurance Company.
    Patricia A.G. Dean, Attorney at Law, Metairie, LA, for Defendant/Appellee, Tasch, Inc.
    Panel composed of Judges SUSAN M. CHEHARDY, FREDERICKA HOMBERG WICKER, and ROBERT A. CHAISSON.
   SUSAN M. CHEHARDY, Judge.

| pThis is a suit by an insurance company to collect a deductible from its insured. The plaintiff obtained a default judgment and initiated collection proceedings with a judgment debtor rule. The defendant objected to the rule on the ground it was not the proper party. The trial court dismissed the rule and annulled the judgment on which the judgment debtor rule was based. The plaintiff appeals. We vacate and remand.

PROCEEDINGS BELOW

On December 19, 2006, Lexington Insurance Company (“Lexington”) filed a petition for damages against Tasch, Inc., alleging as follows:

Lexington issued Commercial General Liability Policy No. 6500231 to Tasch, Inc., which provided coverage from May 80, 2002 until May 30, 2003. As insurer of Tasch, Inc. under that policy, Lexington paid a total of $55,540.36 to claimant BC Condos for damages caused by Tasch, Inc. By the terms of the policy, Tasch, Inc. is subject to a deductible of $25,000.00. Lexington made demand upon Tasch, Inc. for reimbursement, but Tasch, Inc. refused to reimburse Lexington for the amount of the deductible owed by Tasch, Inc. to Lexington. Lexington alleged that Tasch, Inc. was liable to Lexington for breach of the insurance contract. |..¡Lexington sought recovery of the $25,000.00 deductible, as well as attorney’s fees and costs.

On March 14, 2007, Lexington filed a motion for preliminary default, alleging that the petition was filed on December 19, 2006, that Tasch, Inc. was served on January 2, 2007, and that no answer had been filed by the defendant. On March 22, 2007, the district court signed an order directing entry of a preliminary default.

On May 9, 2008, Lexington filed a motion to confirm the default. The motion was accompanied by a clerk’s certification that no answer or other responsive pleadings had been filed, a non-military affidavit, and a certificate of counsel stating that Lexington had filed suit against Tasch, Inc., that service was properly made upon Tasch, Inc., that all legal delays had lapsed, that the defendant had not filed an answer or other responsive pleadings, and that a preliminary default had been entered against Tasch, Inc. on March 22, 2007. Lexington moved the court to enter a default judgment against Tasch, Inc. for the full sum sought, plus interest and costs.

On May 12, 2008, the court rendered and signed a judgment confirming the preliminary default previously entered. The judgment was in favor of Lexington and against Tasch, Inc., for the full sum of $25,000.00 plus legal interest from the date of judicial demand until paid, as well as all court costs.

On October 2, 2009, Lexington filed another motion to confirm default, in which it alleged that on October 28, 2005, Tasch, Inc. changed its name to Tasch, L.L.C. d/b/a Tasch Construction, Inc., that Tasch, L.L.C. d/b/a Tasch Construction, Inc. is the successor in interest of Tasch, Inc., and that Tasch, L.L.C. d/b/a Tasch Construction, Inc. is a continuation of Tasch, Inc., because it retains the same officers and the same registered agent. Lexington alleged further that no answer |4was filed by Tasch, Inc. or its successor-in-interest, Tasch, L.L.C. d/b/a Tasch Construction, Inc.; that Lexington’s petition for damages against Tasch, Inc. is based on a conventional obligation, the obligation to pay Lexington a $25,000.00 deductible pursuant to Endorsement # 010 of Policy No. 6500231; that a preliminary default was entered against Tasch, Inc. on March 22, 2007; and that neither Tasch, Inc. nor its successor-in-interest, Tasch, L.L.C. d/b/a Tasch Construction, Inc., had filed an answer or other responsive pleadings.

Attached to this petition were a clerk’s certification, a non-military affidavit, and a certificate of counsel, as well as a copy of a letter to the Louisiana Secretary of State from Jack R. Allen, Jr. of Tasch, Incorporated, dated October 28, 2005, advising, “We have approved the use of the name Tasch, L.L.C. All of the officers of Tasch, L.L.C. are the same as Tasch, Inc. and Tasch, Inc. will change its name to Tasch Construction Inc. Accordingly, you have our authorization to issue Articles of Incorporation to Tasch, L.L.C.” Another attachment was a printout from the website of the secretary of state, showing that Tasch, L.L.C. was registered on October 31, 2005, and was in active status and good standing on September 28, 2009. Also attached were documents provided with the previous motion for confirmation of default.

On October 13, 2009, the district court rendered and signed a judgment in favor of Lexington and against “Tasch, Inc., and its successor in interest, Tasch, L.L.C. d/b/a Tasch Construction, Inc. f/k/a Tasch, Inc.” for $25,000.00 plus legal interest from the date of judicial demand until paid, and all court costs.

On December 14, 2010, Lexington filed a Petition for Examination of Judgment Debtor, reciting that it had obtained a final judgment against Tasch, Inc. and/or its successor in interest, Tasch, L.L.C. d/b/a Tasch Construction, Inc. f/k/a Tasch, Inc. (“Tasch”) on October 18, 2009; that pursuant to that judgment, Tasch 15owes Lexington $25,000.00, plus legal interest from the date of judicial demand until paid; and that the judgment remains unsatisfied, and Lexington desires to avail itself of the provisions of Articles 2451 through 2456 of the Louisiana Code of Civil Procedure, “so that Lexington may examine said Defendant on matters pertaining to its estate in conformity with said statute.”

On December 16, 2010 the court issued a judgment debtor rule, ordering “Tasch, Inc. and/or its successor in interest, Tasch, L.L.C. d/b/a Tasch Construction, Inc. f/k/a Tasch, Inc.” to appear for examination on February 7, 2011, with checks, copies of bank statements, copies of the registrations and titles of vehicles registered in its name, and the check registers of every bank account in its name.

On December 21, 2010, Lexington filed a Petition for Writ of Fieri Facias, representing that a judgment had been rendered on October 13, 2009, in favor of Lexington against Tasch, Inc. and/or its successor in interest, Tasch, L.L.C. d/b/a Tasch Construction, Inc. f/k/a Tasch, Inc. in the amount of $25,000.00; that all legal delays had run and no appeal had been taken, making the judgment final; and that Tasch had neither paid nor satisfied the judgment. Lexington sought issuance of a writ of fieri facias directing the sheriff to seize and sell the property of Tasch, Inc. and/or its successor in interest, Tasch, L.L.C. d/b/a Tasch Construction, Inc. f/k/a Tasch, Inc. On January 3, 2011, the district court signed the order for a writ of fieri facias against Tasch, Inc. and/or its successor in interest, Tasch, L.L.C. d/b/a Tasch Construction, Inc. f/k/a Tasch, Inc., as requested.

On October 31, 2011, Tasch, L.L.C. filed an objection to the judgment debtor examination. Tasch, L.L.C. asserted that the original petition for damages was against Tasch, Inc.; that it was never amended to include Tasch, L.L.C. d/b/a Tasch Construction, Inc. f/k/a Tasch, Inc.; that Tasch, L.L.C. d/b/a Tasch | ^Construction, Inc. was never served with the original complaint nor cited to appear to answer same; and that Tasch, L.L.C. d/b/a Tasch Construction, Inc. was never a named party in any documents until the second Motion and Order to Confirm Default was filed on October 2, 2009, approximately 17 months after the final judgment was first signed on May 12, 2008.

Tasch, L.L.C. asserted that Lexington had tried to avoid possible exceptions of prescription, no right of action, and no cause of action by amending only the Motion and Order to Confirm Default that was filed on October 2, 2009, without mentioning the fact that a judgment had already been signed on May 12, 2008, which was a final judgment at the time of the filing of the motion. Tasch, L.L.C. asserted there was never a second action filed against Tasch, L.L.C. d/b/a Tasch Construction, Inc. that could have been combined with the current action. Tasch, L.L.C. requested that the court declare the October 13, 2009 judgment null and void, vacate it, and cast the plaintiff for all costs, including court costs and attorney’s fees.

The objection/opposition to the judgment debtor rule was heard on November 10, 2011. On November 30, 2011, the court rendered judgment that granted the “exception” and declared the judgment signed on October 13, 2009 null and void and vacated it. The judgment also dismissed the Petition for Examination of Judgment Debtor.

In written Reasons for Judgment, the court said,

After hearing oral argument, this Court granted Tasch, LLC’s objection and stated on the record that it’s [sic] reason for doing so was because the Original Petition and Original Judgment were against Tasch, Inc. There was no notice of service on Tasch, LLC. This court further reasoned that there was no problem with the Judgment Debtor Rule proceeding against Tasch, Inc. because that’s who the Judgment was against, however, 17Tasch, LLC must be served if Lexington wanted to have them on the Judgment Debtor rule as well.

Lexington has appealed.

ASSIGNMENTS OF ERROR

On appeal Lexington raises the following issues:

1. Whether Tasch, L.L.C. is the same entity as Tasch, Inc., where the following facts apply: this was simply a name change; Tasch, L.L.C. replaced Tasch, Inc.; Tasch, L.L.C. has the same officers that Tasch, Inc. previously had; Tasch, L.L.C. carries on the same business as Tasch, Inc.; Tasch, L.L.C. continues to hold itself out as Tasch, Inc.; and Tasch, L.L.C. did not operate simultaneously with Tasch, Inc.
2. Whether initially naming Tasch, Inc. as defendant instead of Tasch, L.L.C. renders Lexington’s judgment against Tasch, L.L.C. a nullity, even where the two are not separate, distinct entities, but rather Tasch, Inc. simply changed its name to Tasch, L.L.C., and where Tasch, L.L.C.’s registered agent had notice of the lawsuit by Lexington.

LAW AND ANALYSIS

We do not address the assignments raised by the appellant, however, due to the insufficiency of the record on this appeal. There was no evidence introduced, by either party, in support of or against either Lexington’s judgment debtor rule or Tasch, L.L.C.’s “objection” to the judgment debtor rule. Further, Tasch, L.L.C. did not follow the proper procedure to annul a judgment. The trial court, therefore, had no proper basis for its ruling, so the judgment must be vacated and the matter remanded for further proceedings.

| sInsufficient Evidence in Record

First, Lexington failed to present evidence at the hearing to support the argument it makes regarding the identity of the parties. The documents to which it refers are not a part of the record for purposes of this appeal because they were not introduced into evidence at the hearing of the judgment debtor rule.

Similarly, the arguments made by Tasch, L.L.C. in opposition to the judgment debtor rule are not properly supported by appropriate evidence, whether testimonial or documentary. Tasch, L.L.C. argues it cannot be liable for debts of Tasch, Inc. because Tasch, Inc. did not sell any of its assets, goodwill, or anything else to Tasch, L.L.C.

When a party raises an exception or motion that must be proven, it is that party’s burden to present evidence establishing the claims made therein. See La. C.C.P. arts. 930, 931, 963. The exceptions to that rule are the peremptory exception of no cause of action and the motion for summary judgment.

An exception of no cause of action must be tried on the face of the petition alone. La. C.C.P. art. 931; Ramey v. DeCaire, 2003-1299, p. 7 (La.3/19/04), 869 So.2d 114, 118.

A motion for summary judgment is decided on “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any.” La. C.C.P. art. 966(B). Summary judgment may be granted only if the documents in the record show that there is no genuine issue as to material fact, and that mover is entitled to judgment' as a matter of law. Id.

Other defenses, however, whether raised by exception or motion or in other pleadings, must be proven by evidence introduced at a hearing, where the trial court performs its function of weighing evidence, making credibility ^determinations, and making factual findings. Scheuermann v. Cadillac of Metairie, Inc., 11-1149, pp. 5-7 (La.App. 5 Cir. 5/31/12), 97 So.3d 423, 427.

Evidence not properly and officially offered and introduced cannot be considered, even if it is physically placed in the record. Denoux v. Vessel Mgmt. Services, Inc., 2007-2143, p. 6 (La.5/21/08), 983 So.2d 84, 88. Documents attached to memoranda do not constitute evidence and cannot be considered as such on appeal. Id. Appellate courts are courts of record and may not review evidence that is not in the appellate record, or receive new evidence. Id.; La. C.C.P. art. 2164.

These principles are well established in this Circuit. See, e.g., Gulf Coast Bank and Trust Co. v. Eckert, 95-156 (La.App. 5 Cir. 5/30/95), 656 So.2d 1081, writ denied, 95-1632 (La.10/6/95), 661 So.2d 474; Ray Brandt Nissan, Inc. v. Gurvich, 98-634 (La.App. 5 Cir. 1/26/99), 726 So.2d 474; Jackson v. United Services Auto. Ass’n Cas. Ins. Co., 08-333 (La.App. 5 Cir. 10/28/08), 1 So.3d 512; Wilson v. Beechgrove Redevelopment, L.L.C., 09-1080 (La.App. 5 Cir. 4/27/10), 40 So.3d 242; Anowi v. Nguyen, 11-468 (La.App. 5 Cir. 12/13/11), 81 So.3d 905; Tolmas v. Parish of Jefferson, 11-492 (La.App. 5 Cir. 12/29/11), 80 So.3d 1260.

Improper Annulment of Judgment

Second, Tasch, L.L.C. did not follow proper procedure to annul a judgment. Tasch, L.L.C.’s arguments are, in essence, that the October 13, 2009 judgment, on which the judgment debtor proceeding was based, is an invalid judgment. Tasch, L.L.C. points out that Tasch, L.L.C. d/b/a Tasch Construction, Inc. was never served with the petition for damages in this matter, that a final judgment was signed on May 12, 2008, against Tasch, Inc. only, and that Lexington filed an “amended” Motion and Order to Confirm Default on October 2, 2009 which added Tasch, L.L.C. d/b/a Tasch Construction, Inc. as a defendant. Tasch, L.L.C. asserts |10that addition was invalid and that the “default judgment” based on that motion to confirm default was null. We find, however, that Tasch, L.L.C. d/b/a Tasch Construction, Inc., cast as a purported defendant in the October 13, 2009 judgment, cannot raise nullity of the judgment as a defense without initiating a proceeding to annul the judgment.

“The nullity of a final judgment may be demanded for vices of either form or substance, as provided in Articles 2002 through 2006.” La. C.C.P. art. 2001. La. C.C.P. art. 2002 provides for annulment of a final judgment for vices of form, which include lack of jurisdiction. Article 2002 also states that an action on these grounds may be brought at any time. La. C.C.P. art. 2003 provides that an action to annul a judgment under Article 2002 is lost through acquiescence. La. C.C.P. art. 2004 provides for annulment for vices of substance, specifically fraud or ill practices. Article 2004 limits the time to bring action on those grounds to one year. La. C.C.P. art. 2005 sets out the effect of appeal on annulment of a judgment. La. C.C.P. art. 2006 provides that an action to annul a judgment must be brought in the trial court, even after appeal.

The proper procedure to seek annulment of a judgment for vices of substance not apparent in the record or on the face of the judgment is by direct action to annul the judgment. Coleman E. Adler & Sons, Inc. v. Waggoner, 538 So.2d 1131, 1133 (La.App. 5 Cir.1989). In contrast, an action for nullity for vices of form under Article 2002 may be asserted collaterally and at any time, unlike the action for nullity based on vices of substance found in Article 2004. Charia v. Mungoven, 550 So.2d 939, 941 (La.App. 5 Cir.1989). See also, LaBove v. Theriot, 597 So.2d 1007, 1011 (La.1992).

|, ,DECREE

We find the record before us insufficient to support the ruling of the district court. Accordingly, the judgment is vacated and the matter is remanded for further proceedings. The parties are assessed their own costs for this appeal.

VACATED AND REMANDED


text:
    Louis BOYD v. TIMES PICAYUNE, St. Charles Herald, L’Observor, Major Zinna and Erick Brass.
    No. 12-CA-375.
    Court of Appeal of Louisiana, Fifth Circuit.
    Nov. 27, 2012.

      Louis Boyd, Oakdale, LA, Plaintiff/Appellant.
    Phelps Dunbar LLP, Dan B. Zimmerman, Mary E. Roy, Attorneys at Law, New Orleans, LA, for DefendantyAppellee, Herald-Guide Publishing, L.L.C., named in the Petition and Amended Petition as Defendant “St. Charles Herald”.
    Panel composed of Judges SUSAN M. CHEHARDY, FREDERICEA HOMBERG WICKER, and MARC E. JOHNSON.
   SUSAN M. CHEHARDY, Judge.

12PIaintiff, Louis Boyd, in proper person, appeals from a decision of the trial court granting summary judgment in favor of defendant, the St. Charles Herald Guide, dismissing plaintiffs suit against it with prejudice. For the reasons that follow, we affirm the decision of the trial court.

On November 14, 2008, law enforcement officers executed a search warrant for a residence located in New Sarpy, Louisiana. The officers seized a quantity of crack cocaine, six pills identified as carisoprodol, a pistol, and two pit bulldogs. Thereafter, Boyd was arrested for the following offenses: (1) possession of a schedule II controlled dangerous substance, to wit: crack cocaine over 28 grams; (2) possession with intent to distribute a schedule II controlled dangerous substance, to wit: crack cocaine; (8) possession of a firearm while in possession of a controlled dangerous substance; (4) possession of a firearm by a convicted felon; (5) possession of a legend drug, to wit: carisoprodol; and (6) cruelty to animals. Boyd’s case subsequently was transferred to federal court, where he was indicted on federal drug and firearms charges. Mr. Boyd ultimately was convicted by a jury of several federal charges and was sentenced to twenty-five years.

On November 16, 2009, Mr. Boyd filed a “Suit for Deformation [sic]”, naming as defendants three newspapers — The Times-Picayune, L’Observateur, and the St. Charles Herald Guide — as well as Major Sam Zinna of the St. Charles Parish Sheriffs Office. In his petition, Boyd alleged that the defendants “in unison concocted a story that property confiscated at 736 East Easy Street was ‘believed’ to be stolen during Hurricane ‘Gustav’ and/or acquired through items being traded for drugs.” Boyd further alleged, “Defendants made unsuitable statement and no proof of the times displayed in their newspapers was stolen or traded for drugs as the article proclaimed, [sic]”

Mr. Boyd amended his petition on August 13, 2010 to add Detective Erick Brass as a defendant and to attach copies of the newspaper articles forming the basis for his suit. The articles in The Times-Picay-mie and L’Observateur contain quotes from Major Zinna stating that the police believed that goods had been stolen from vacant houses during Gustav and/or that plaintiff traded drugs for the stolen goods. However, the report of defendant’s arrest in the “Sheriffs Reports” column in the St Charles Herald Guide does not contain such quotes.

After the filing of its answer, Herald-Guide filed a motion for summary judgment, which was granted by the trial court on February 27, 2012. Mr. Boyd appeals from this judgment of the trial court that dismissed his suit against Herald-Guide.

A motion for summary judgment should be granted “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law.” La. C.C.P. art. 966(B). While the initial burden of proof remains with the mover to show that no genuine issue of material fact exists, if the mover has made a prima facie showing that the motion | ¿should be granted, the burden shifts to the non-moving party to present evidence demonstrating that a material factual issue remains. La. C.C.P. art. 966(C)(2); Joseph v. Crossing II, L.L.C., 06-10, p. 4 (La.App. 5 Cir. 6/28/06), 934 So.2d 875, 877. Once a motion for summary judgment has been properly supported by the moving party, the non-moving party’s failure to come forth with any competent evidence to show there is a material factual dispute dictates the granting of the motion. La. C.C.P. art. 966(C); Darr v. Marine Electronics Solutions, Inc., 11-908, p. 13 (La.App. 5 Cir. 5/22/12), 96 So.3d 527, 535.

Appellate courts review a judgment granting or denying a motion for summary judgment de novo. Phipps v. Schupp, 09-2037, p. 5 (La.7/6/10), 45 So.3d 593, 597. Appellate courts ask the same questions the trial court does in determining whether summary judgment is appropriate: whether there is any genuine issue of material fact, and whether the mover is entitled to judgment as a matter of law. Id.

In his defamation suit, Mr. Boyd alleges that the defendants, “in unison,” made up a story that the property confiscated at his house was believed to be stolen during Hurricane Gustav and/or acquired through trading for drugs. Boyd contended that there was no proof to support these allegations, and that these published statements were “unsuitable” and defamed his character.

Herald-Guide, in its motion for summary judgment, contended that it did not publish the statements that form the basis of Mr. Boyd’s suit. Instead, its report contains only the true statement that Boyd was arrested, and lists the offenses with which he was charged. In support of the motion, Herald-Guide attached the newspaper article cited by Boyd (the same article Boyd attached to his petition), a copy of the search warrant and the arrest report, and documentation of Boyd’s federal conviction and sentence. A reading of the article in the St. Charles Herald \jGuide shows that it makes no mention of stolen goods, Hurricane Gustav, or trades for drugs. In its entirety, the reference to Boyd’s arrest states as follows:

Louis Boyd, Jr., 53, of 736 East Easy St. in New Sarpy, was arrested on Nov. 18 and charged with possession of and possession with intent to distribute crack cocaine, possession of a firearm while in possession of crack cocaine, possession of carisoprodol, possession of a firearm by a convicted felon and simple cruelty to animals.

Mr. Boyd, in his opposition to the motion for summary judgment, made only general allegations and did not include any evidence to dispute Herald-Guide’s proof that it did not make the statements as alleged by Mr. Boyd. Mr. Boyd further contended that there was a second article published in the St. Charles Herald Guide, but he offered no support for this contention.

Considering the undisputed facts as presented by Herald-Guide, namely that it did not publish the statements as alleged by Mr. Boyd, we find no error in the trial court’s ruling granting summary judgment in favor of the St. Charles Herald Guide, dismissing it from Mr. Boyd’s suit with prejudice.

In his brief to this Court, Mr. Boyd also contends that the trial court erred in denying his writ of habeas corpus, in which he sought to be physically present at the hearing on his motion for summary judgment.

In Leeper v. Leeper, 44,777, pp. 6-7 (La.App. 2 Cir. 9/23/09), 21 So.3d 1006, 1010, the court noted that a prisoner’s right of access to state and federal courts does not necessarily include the right to be physically present at the trial of a civil suit, and that the trial court is given discretion in the determination of whether a prisoner-party in a civil action should appear personally in court for the trial of the action.

Here, the trial court denied Mr. Boyd’s writ of habeas corpus, finding that his presence was not required because he had filed a memorandum in opposition to | fithe motion, the court had ordered that the matter was to be submitted by briefs only, and live testimony was not permitted at hearings on motions for summary judgment. We cannot say that the trial court abused its discretion in denying the writ of habeas corpus.

Finally, Mr. Boyd contends that the trial court “assisted” defendants Sam Zinna and Erik Brass by granting them summary judgment even though they did not file a motion. However, the judgment on appeal herein makes no mention of these persons.

After careful consideration, we find no merit to Mr. Boyd’s contentions. Accordingly, the judgment of the trial court that granted summary judgment in favor of the St. Charles Herald Guide (a/k/a Herald-Guide Publishing, L.L.C.) and dismissed Mr. Boyd’s suit against it, is affirmed. The parties are to bear their own costs.

AFFIRMED

      . The St. Charles Herald Guide newspaper is owned and published by Herald-Guide Publishing, L.L.C., which is the proper name of the party defendant. We refer to the party as "Herald-Guide” and refer to the newspaper itself as the St. Charles Herald Guide.


text:
    STATE of Louisiana v. Centeria N. McKENZIE.
    No. 12-KA-277.
    Court of Appeal of Louisiana, Fifth Circuit.
    Nov. 27, 2012.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Juliet L. Clark, Assistant District Attorneys, Gretna, LA, for Plaintiff/Appellee.
    Gwendolyn K. Brown, Attorney at Law, Louisiana Appellate Project, Baton Rouge, LA, for Defendant/Appellant.
    Panel composed of Judges SUSAN M. CHEHARDY, JUDE G. GRAVOIS, and MARC E. JOHNSON.
   JUDE G. GRAVOIS, Judge.

|Jn this Crosby appeal, defendant, Centeria McKenzie, appeals her conviction for forgery. On appeal, she argues that the trial court erred in denying her motion to quash the bill of information filed against her because of the State’s failure to timely prosecute her. Finding no error or abuse of discretion in the trial court’s ruling under review, we affirm defendant’s conviction.

PROCEDURAL HISTORY AND FACTS

On July 11, 2007, the Jefferson Parish District Attorney filed a bill of information charging defendant, Centeria McKenzie, with forgery in violation of LSA-R.S. 14:72. On July 16, 2007, defendant was arraigned and entered a plea of not guilty. At her arraignment, defendant was given both oral and written notice to appear on September 14, 2007. When defendant failed to appear on that date, the L trial court issued an attachment for her arrest. This attachment was satisfied by defendant’s arrest on February 8, 2008 and was recalled on February 14, 2008.

On February 19, 2008, defendant appeared in court and was given both oral and written notice to appear on March 7, 2008. When defendant failed to appear on that date, the trial court issued another attachment for her arrest. This attachment was satisfied by defendant’s arrest on August 26, 2011. Motions were then set for hearing on September 12, 2011.

On August 80, 2011, defendant was released from custody due to prison overcrowding. At the time of her release, defendant was given written notice to appear in court on September 12, 2011. She did not appear in court on that date, and as a result, the court issued a third attachment for her arrest. That attachment was recalled on September 13, 2011, and motions were re-set for October 17, 2011. Defendant did not appear in court on that date, and a fourth attachment was issued for her arrest. That same day, defendant filed a motion to quash the bill of information, a hearing for which was set on November 14, 2011. Defendant did not appear on November 14, 2011, and the court ordered her attachment to remain outstanding. This attachment was eventually satisfied on March 1, 2012, and the motions were set for hearing on March 2, 2012.

On March 2, 2012, the court denied defendant’s motion to quash. Thereafter, defendant withdrew her plea of not guilty and entered a plea of guilty pursuant to State v. Crosby, supra, reserving her right to appeal the denial of her motion to quash. The trial court thereupon sentenced defendant to two years at hard labor, suspended the sentence, and placed her on two years of active probation. Defendant was also fined $500.00 plus costs. On March 7, 2012, the trial court granted defendant’s motion for appeal.

l4The facts of the offense, as detailed in the bill of information, although not relevant to this appeal, are that on or about May 30, 2007, defendant “did willfully and unlawfully forge with intent to defraud a check drawn on the account of Gary Bank-ston dated 05/30/2007, in the sum of $50.00, payable to the order of Centeria McKenzie and signed Gary Bankston as purported maker thereof.”

ASSIGNMENT OF ERROR — denial of motion to quash

In her sole assignment of error, defendant contends that the trial court erred in denying her motion to quash. She argues that the bill of information should have been quashed because the State did not timely commence trial. The State responds that this claim has no merit.

La.C.Cr.P. art. 532(7) provides that a motion to quash may be based on the expiration of the time limitation for the institution of prosecution or for the commencement of trial. Defendant was charged by bill of information filed on July 11, 2007 with forgery, a non-capital felony offense. Therefore, pursuant to La. C.Cr.P. art. 578(A)(2), the State was required to bring defendant to trial within two years from the date of institution of the prosecution. Prosecution is instituted on the date when the indictment is returned or the bill of information is filed. State v. Smith, 07-959, p. 5 (La.App. 5 Cir. 3/11/08), 982 So.2d 881, 884 (citations omitted). The bill of information was filed in this case on July 11, 2007; as such, trial must have commenced no later than July 11, 2009, unless the time limitation was interrupted.

1 r,Louisiana law allows for the interruption of this prescriptive period. State v. Romar, 07-2140, p. 3 (La.7/1/08), 985 So.2d 722, 725 (citation omitted). La. C.Cr.P. art. 579 provides as follows:

A. The period of limitation established by Article 578 shall be interrupted if:
(1) 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.

Defendant does not explicitly acknowledge that the prescriptive period was interrupted by her failure to appear on March 7, 2008. However, she seems to argue that even if the interruption commenced with her failure to appear on that date, it ceased on August 13, 2008, because on that date, the Clerk of Court for the 24th Judicial District Court received a letter from the State Attorney for the First Judicial Circuit of Florida stating that defendant was being prosecuted on felony charges in the state of Florida. This letter, defendant argues, gave the Jefferson Parish District Attorney’s Office notice of defendant’s location on or about August 13, 2008. Since the State had knowledge of her whereabouts on that date, defendant claims that her trial should have commenced within two years of that date. Since it did not, she argues that the bill of information should have been quashed pursuant to La.C.Cr.P. art. 532(7).

lfíThe State argues that the prescriptive period in this case was interrupted when defendant failed to appear in court on March 7, 2008. The State contends that this interruption terminated on August 29, 2011, when defendant’s attachment for her arrest was recalled by the trial court as a result of her arrest on August 26, 2011. The State further claims that the prescriptive period commenced to run anew from this date (August 29, 2011), thereby rendering the commencement of trial timely. The State notes in brief that the letters from the Florida court do not state that defendant was incarcerated in that state, nor do they contain any address information on defendant.

In support of her argument, defendant relies on State v. Amarena, 426 So.2d 613 (La.1983). However, that case is easily distinguished from the instant ease. In Amarena, in which the Supreme Court granted defendant’s motion to quash, the State had received notification of the fact that defendant was incarcerated in California. The State argued that the statutory interruption did not cease until defendant was transported to Louisiana. The Supreme Court held that the period of interruption under La.C.Cr.P. art. 579(A)(1) had ceased when the State received official notification that the defendant was incarcerated in California and the State failed to timely proceed with any of the proper steps to obtain defendant’s presence in Louisiana until more than two years after the State learned of defendant’s whereabouts, at which time he was promptly delivered to Louisiana. Further, the Supreme Court also found La.C.Cr.P. art. 579(A)(2) applicable, determining that the State had and failed to bear the heavy burden of proving that the defendant’s purpose in remaining outside the state was to avoid detection, apprehension or prosecution. Amarena at 617.

In this case, the letters from the Florida court fail to show that defendant was incarcerated in that state, and moreover fail to supply any address information for defendant. Thus, Amarena is not pertinent herein. Further, in 1984, the year after Amarena was decided, La.C.Cr.P. art. 579 was amended to add section (A)(3), which declared that the period of limitation established by Article 578 shall also be interrupted if “[t]he defendant fails to appear at any proceeding pursuant to actual notice, proof of which appears of record,” upon which the State relies here. Thereafter, the Louisiana circuit courts of appeal were split over whether this section imposed an affirmative duty upon the State to search for a defendant who has failed to appear for trial after receiving actual notice. In State v. Romar, 07-2140 (La.7/1/08), 985 So.2d 722, the Supreme Court resolved the split in the circuits, declaring that the State did not have that affirmative duty, and moreover that its duties were discharged thereunder by issuing an attachment for Romar’s arrest. The Court held that “[t]he burden under La.C.Cr.P. art. 579(A)(3) thus falls not on the state to show that defendant had placed himself outside of its control to secure his presence at trial but on defendant and his sureties to avoid the consequences of his failure to appear in court after receiving notice, and one of those consequence [sic], since 1984, is the interruption of the time limits placed on trial.” Romar, 07-2140 at p. 8, 985 So.2d at 727.

In Romar, nearly eight years passed before the defendant was arrested on the attachment, during which time the trial court recognized that the defendant was, at least in theory, “locatable.” Romar, 07-2140 at 7, 985 So.2d at 727. The Court held that the prescriptive period did not begin to run anew until the cause of the interruption no longer existed, i.e., until the defendant was finally arrested on the open attachment and appeared in court to dispose of the criminal contempt proceeding. Id.

lRIn this case, pursuant to La. C.Cr.P. art. 579(A)(3), the interruption began on March 7, 2008, when defendant failed to appear in court after receiving actual notice. Romar makes it clear that when the cause of interruption is by a defendant’s failure to appear after having received proper notice, the interruption does not terminate until the defendant is arrested on the attachment, regardless if he is “locatable.” Here, defendant was arrested on the attachment on August 26, 2011. Therefore, pursuant to Romar, the interruption ceased on that date and the prescriptive period began to run anew.

An appellate court is allowed to reverse a trial court judgment on a motion to quash only if that finding represents an abuse of the trial court’s discretion. State v. Love, 00-8347, pp. 9-10 (La.5/23/08), 847 So.2d 1198, 1206. Since defendant was brought to trial within two years of her arrest on August 26, 2011, we find that the trial court did not abuse its discretion in denying defendant’s motion to quash.

Defendant’s assignment of error is without merit.

ERRORS PATENT REVIEW

The record was reviewed for errors patent, according to La.C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975); and State v. Weiland, 556 So.2d 175 (La.App. 5 Cir.1990). The review reveals no errors patent in this case.

CONCLUSION

For the foregoing reasons, defendant’s conviction is affirmed.

AFFIRMED

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

      . Under Crosby, a defendant may be allowed appellate review if at the time he enters a guilty plea, he expressly reserves his right to appeal a specific adverse ruling in his case.

      . LSA-R.S. 14:2(4) defines felony as "any crime for which an offender may be sentenced to death or imprisonment at hard labor.” LSA-R.S. 14:72(D) provides: “Whoever commits the crime of forgery shall be fined not more than five thousand dollars, or imprisoned, with or without hard labor, for not more than ten years, or both.”

      . A second letter dated May 20, 2010, containing the same information, was received by the Clerk of Court from the State Attorney for the First Judicial Circuit of Florida.

      . Although the State asserts that defendant's arrest date was August 29, 2011, the record reflects that defendant's arrest date was August 26, 2011.

      . It is debatable whether the letters from the court in Florida equate to information sufficient to have made defendant "locatable.” The letters do not state that defendant was incarcerated in Florida; nor do they have any address information for defendant.


author: ROBERT A. CHAISSON, Judge.

text:
    STATE of Louisiana v. Jamar FISHER.
    No. 12-KA-412.
    Court of Appeal of Louisiana, Fifth Circuit.
    Nov. 27, 2012.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Thomas J. Butler, J. Brandon Kinnett, Assistant District Attorneys, Gretna, LA, for Plaintiff/Appellant.
    Margaret S. Sollars, Attorney at Law, Louisiana Appellate Project, Thibodaux, LA, for DefendanVAppellee.
    Panel composed of Judges SUSAN M. CHEHARDY, FREDERICKA HOMBERG WICKER, and ROBERT A. CHAISSON.
   ROBERT A. CHAISSON, Judge.

|2On appeal, the State challenges the ruling of the district court which granted the defendant’s motion to quash the bill of information. For the reasons that follow, we find merit to the State’s arguments and accordingly reverse the judgment of the trial court.

STATEMENT OF THE CASE

On February 24, 2011, the Jefferson Parish District Attorney filed a bill of information charging the defendant, Jamar Fisher, with a violation of LSA-R.S. 14:95(E) “in that he did possess a handgun firearm while in the commission of an Aggravated Assault, a crime of violence as defined by L.R.S. 14:2.” At his arraignment, the defendant pled not guilty. On October 21, 2011, the defendant filed a motion to quash pursuant to LSA-C.Cr.P. arts. 531, 532(6) and 591, alleging that the State’s charging him with a violation of LSA-R.S. [sic] 14:95(E) constituted a double jeopardy violation. He specifically asserted that the | ¡¡dangerous weapon alleged in the aggravated assault was the same firearm he allegedly possessed to justify the violation of LSA-R.S. 14:95(E). The defendant further argued that the same evidence was used to prove both crimes and that all of the facts alleged by the State were identical to prove both the required element of the commission of a crime of violence (using a firearm to commit an aggravated assault) and the possession of the firearm during the crime of violence (possession of the same firearm used in the aggravated assault).

The trial judge conducted a hearing on the defendant’s motion to quash on November 4 and December 14, 2011. After entertaining the arguments of counsel, the trial judge granted the motion to quash on the basis that the defendant was inappropriately charged, not on double jeopardy grounds. The trial judge specifically stated that the defendant should have been charged with aggravated assault and not a LSA-R.S. 14:95(E) violation. The State now appeals that ruling.

LAW AND ANALYSIS

On appeal, the State argues that the trial judge erred by granting the defendant’s motion to quash. The State contends that the trial judge did not assert a recognized legal basis for granting the motion to quash, and the district attorney, not the district court, has control and charge of criminal prosecutions instituted or pending in his or her district. We find merit to these arguments.

In the instant case, the defendant filed his motion to quash based on double jeopardy grounds. Pursuant to LSA-C.Cr.P. art. 532(6) a motion to quash may be granted if trial for the offense charged would constitute double jeopardy. Both the Fifth Amendment to the United States Constitution and Article 1, § 15 of the Louisiana Constitution guarantee that no person shall be twice placed in jeopardy for the same offense. See also LSA-C.Cr.P. art. 591. The guarantee against double jeopardy includes constitutional protections against: 1) a second Lprosecution for the same offense after acquittal; 2) a second prosecution for the same offense after conviction; and 8) multiple punishments for the same offense. State v. Smith, 95-61 (La.7/2/96), 676 So.2d 1068, 1069.

The Double Jeopardy Clause clearly prevents an offender from being convicted of both the underlying offense for a 14:95(E) violation and the 14:95(E) violation itself. State v. Sandifer, 95-2226 (La.9/5/96), 679 So.2d 1324, 1329. In State in Interest of S.L., 11-883 (La.App. 5 Cir. 4/24/12), 94 So.3d 822, the juvenile was adjudicated delinquent for illegal possession of a handgun by a juvenile, LSA-R.S. 14:95.8, and possession of a firearm while in possession of a controlled dangerous substance, LSA-R.S. 14:95(E). On appeal, the juvenile argued that those adjudications violated double jeopardy. The State conceded this point on appeal and agreed that S.L.’s adjudication and disposition for illegal possession of a handgun by a juvenile should be vacated. This Court found that the prosecution of the juvenile for the illegal possession of a handgun by a juvenile required use of the same evidence presented against him under LSA-R.S. 14:95(E), specifically, possession of the same firearm. As such, this Court found that the prohibition against double jeopardy was violated. This Court reversed the adjudication and disposition imposed for illegal possession of a handgun by a juvenile, the less severely punishable offense.

In State v. Warner, 94-2649 (La.App. 4 Cir. 3/16/95), 653 So.2d 57, writ denied, 95-0943 (La.5/19/95), 654 So.2d 1089, the appellate court ruled that double jeopardy barred the prosecution for cocaine possession of a defendant who had previously been convicted under LSA-R.S. 14:95(E) of possession of a firearm while in possession of the same cocaine. Likewise, in State v. Woods, 94-2650 (La.App. 4 Cir. 4/20/95), 654 So.2d 809, writ denied, 95-1252 (La.6/30/95), 657 So.2d 1035, the appellate court concluded that double jeopardy barred the | .¡¡prosecution of a defendant under LSA-R.S. 14:95(E) subsequent to his conviction on a charge of cocaine possession, where the cocaine possession was the basis for the violation of LSA-R.S. 14:95(E).

However, these cases are clearly distinguishable from the instant case. Herein, the defendant was not charged with a violation of LSA-R.S. 14:95(E) and the underlying offense. Rather, according to the February 24, 2011 minute entry contained in the record, the State refused the aggravated assault charge, LSA-R.S. 14:37, and accepted the illegal possession of a firearm charge, LSA-R.S. 14:95(E).

In State v. Maurice, 96-2268 (La.App. 4 Cir. 12/4/96), 686 So.2d 58, writ denied, 97-0400 (La.3/27/97), 692 So.2d 396, the defendant was charged with simple battery, a violation of LSA-R.S. 14:35, arising out of an incident which occurred on June 22, 1994. He was first charged on June 23, 1994, with battery under the New Orleans Municipal Code, and the case was allotted to the municipal court. On July 28, 1994, the municipal court dismissed the charge after the State was unable to proceed to trial. Thereafter, on August 10, 1994, two counts of simple battery were instituted against the defendant in the criminal district court. After the defendant’s motion to quash the bill of information on double jeopardy grounds was denied, the matter proceeded to bench trial at the conclusion of which the defendant was found guilty on count one and not guilty on count two. The defendant thereafter took an appeal to the appellate division of the criminal district court. That court concluded that the institution of state charges, after the case was dismissed in the municipal court, was barred by the rules of double jeopardy and collateral estoppel. The State thereafter sought review in the appellate court. On appeal, the Fourth Circuit Court of Appeal found that the prosecution of the defendant in the criminal district court for the same charge that was originally brought in the municipal court was not barred by double jeopardy. In so ruling, the 1 f,Fourth Circuit noted that the simple battery charge against the defendant was not adjudicated or submitted in the municipal court, no evidence was presented in the municipal court, no witnesses testified in the municipal court, and the municipal court’s decision to dismiss the charges was based on the State’s inability to go forward to trial.

Similar to the situation in State v. Maurice, supra, the defendant, in the instant case, was not subject to multiple prosecutions or punishments for the same offense. Rather, with regard to the November 8, 2010 incident in which the defendant allegedly pointed a gun at a complaining witness, the State filed a single bill of information charging the defendant with illegal possession of a firearm during the commission of a crime of violence. The record is clear that the State did not file any additional charges, including aggravated assault, against the defendant stemming from the November 8, 2010 offense. Moreover, there is no indication that the State plans to file any additional charges relating to that incident. As correctly noted by the trial court at the motion to quash hearing, double jeopardy does not apply in the instant case because there was only one charge relating to the November 8, 2010 incident.

In the instant case, the trial court clearly did not grant the defendant’s motion to quash on double jeopardy grounds; rather, she granted it on the basis that the State had inappropriately charged the defendant. In fact, she specifically commented that the State should have charged the defendant with aggravated assault, not illegal possession of a firearm during a crime of violence. We first note that the State’s alleged inappropriate charging of the defendant is not one of the grounds for a motion to quash listed in LSA-C.Cr.P. arts. 532 or 534.

| ./Moreover, it is well settled that the district attorney has broad discretion in both the institution and handling of criminal prosecutions. LSA-Const. art. 5, § 26(B); LSA-R.S. 16:1(B). LSA-C.Cr.P. art. 61 provides that, subject to the supervision of the attorney general, the district attorney has entire charge and control of every criminal prosecution instituted or pending in his district, and determines whom, when, and how he shall prosecute. State v. Brisco, 04-8039 (La.7/6/06), 933 So.2d 754, 762.

LSA-R.S. 14:4 provides that conduct which is criminal under several articles may be prosecuted, in the discretion of the district attorney, as follows:

Prosecution may proceed under either provision, in the discretion of the district attorney, whenever an offender’s conduct is:
(1) Criminal according to a general article of this Code or Section of this Chapter of the Revised Statutes and also according to a special article of this Code or Section of this Chapter of the Revised Statutes; or
(2) Criminal according to an article of the Code or Section of this Chapter of the Revised Statutes and also according to some other provision of the Revised Statutes, some special statute, or some constitutional provision.

In State v. Juluke, 374 So.2d 1259 (La.1979), the defendant was charged with forgery, a felony, in violation of LSA-R.S. 14:72. The defendant filed a motion to quash on the basis that he should have been charged with unauthorized use of a credit card (LSA-R.S.14:67.3), a misdemeanor. The trial court granted the motion. On appeal, the Louisiana Supreme Court stated that the defendant’s conduct would be criminal under either LSA-R.S. 14:72 or R.S. 14:67.3. It found that although the State might have chosen to prosecute the defendant under LSA-R.S. 14:67.3, it was within the discretion provided to the district attorney under LSA-R.S. 14:4 to charge her under the general forgery statute. As such, the |sLouisiana Supreme Court reversed the ruling of the trial court and remanded for further proceedings.

Likewise, in the instant case, the defendant’s alleged conduct, i.e., pointing a gun at another person, is criminal behavior under both LSA-R.S. 14:37 and LSA-R.S. 14:95(E). Therefore, it was clearly within the discretion provided to the district attorney under LSA-R.S. 14:4 to charge the defendant with a LSA-R.S. 14:95(E) violation. It is thereafter left to the trier of fact to determine if the State met its burden of proving the elements of the charged offense.

Lastly, the defendant, in his ap-pellee brief, argues that the trial judge’s ruling should be upheld based on the principle of lenity. The principle of lenity is premised on the idea that a person should not be criminally punished unless the law provides a fair warning of what conduct will be considered criminal. The rule is based on principles of due process that no person should be forced to guess as to whether his conduct is prohibited. The rule of lenity applies not only to interpretations of the substantive ambit of criminal law, but also to penalties imposed by those laws. State v. Piazza, 596 So.2d 817, 820 (La.1992). In the instant case, LSA-R.S. 14:95(E) provided fair warning to the defendant of what conduct would be considered criminal and what penalties would be imposed for a violation of that law. Therefore, there is no merit to the defendant’s assertion that the granting of the motion to quash should be upheld based on the principle of lenity.

Accordingly, for the reasons set forth herein, the judgment of the trial court granting the defendant’s motion to quash the bill of information is reversed. The case is remanded to the trial court for further proceedings.

REVERSED AND REMANDED

      . We recognize that the list of grounds contained in these articles is merely illustrative. State v. Moten, 99-552 (La.App. 5 Cir. 11/30/99), 748 So.2d 1210. Thus, the fact that the defendant’s motion to quash is not based on any of the grounds contained in these articles is not dispositive of the issues raised in this appeal.


text:
    STATE of Louisiana in the Interest of T.M.
    No. 12-KA-436.
    Court of Appeal of Louisiana, Fifth Circuit.
    Nov. 27, 2012.

      Paul D. Connick, Jr., District Attorney, Amanda L. Calogero, Elizabeth B. Curren, Assistant District Attorneys, Harvey, LA, for Appellee, the State of Louisiana.
    Katherine M. Franks, Attorney at Law, Louisiana Appellate Project, Abita Springs, LA, for Appellant, T.M.
    Panel composed of Judges SUSAN M. CHEHARDY, FREDERICKA HOMBERG WICKER, and ROBERT A. CHAISSON.
   SUSAN M. CHEHARDY, Judge.

|20n appeal, T.M. challenges her adjudications as delinquent, arguing that the evidence was insufficient to support her adjudications pursuant to La. R.S. 14:34. For the following reasons, we affirm her convictions and sentences.

Facts and Procedural History

On the morning of Friday, November 11, 2011, L.A., a 14-year-old, eighth grader at Harry S. Truman Middle School in Marrero, Louisiana, was in P.E. class. L.A. was seated on the floor along the wall observing other students participating in P.E. when T.M. walked by her. L.A. noticed that T.M. was wearing a black mitten on one hand. As T.M. walked past L.A., T.M. “dapped” L.A.’s hand with her gloved, partially-opened hand. L.A. felt a sting but did not notice anything in T.M.’s hand. Seconds later, L.A. noticed that her hand was bloody.

Although L.A. initially informed school authorities that she had cut herself with her ID card, when she was subsequently questioned in the principal’s office |aby a Jefferson Parish Sheriffs Deputy, she admitted that T.M. had cut her. At trial, the State introduced a photograph of L.A.’s right hand taken on November 14, 2011, that showed a straight, narrow laceration about one inch long on her palm.

On November 11, 2011, D.D., a sixth grader at Truman Middle who was friends with T.M.’s younger sister, also had P.E. class at the same time as T.M. While the classes were in the gym, T.M. approached D.D. and “dapped her off’ with a closed, gloved hand. D.D. testified that she did not see anything in T.M.’s hand. Moments later, D.D. noticed she had a cut on her right wrist. T.M. immediately put pressure on D.D.’s wound and accompanied D.D. to the office to get a Band-Aid. As they walked, T.M. said “she didn’t know a pencil sharpener razor could cut somebody.” Later, T.M. acknowledged that she had cut L.A. too. At trial, the State introduced a photograph of D.D.’s right wrist taken on November 11, 2011, that showed a straight, narrow laceration about two inches long on her wrist.

On December 22, 2011, the Jefferson Parish District Attorney filed two delinquency petitions in juvenile court naming T.M. The first petition alleged that, on November 11, 2011, T.M. committed aggravated battery with a razor blade upon a minor, D.D., in violation of La. R.S. 14:34. The second petition alleged that, also on November 11, 2011, T.M. committed aggravated battery with a razor blade upon a minor, L.A., in violation of La. R.S. 14:34.

On January 6, 2012, the juvenile denied the allegations of both petitions. On February 29, 2012, after a full trial, the judge adjudicated D.L. delinquent as charged in both petitions. On March 22, 2012, the trial judge entered a judgment |4of disposition on both petitions imposing, on each count, a sentence of six months in the Office of Juvenile Justice, suspended, and placing defendant on two years active probation with special conditions. On April 11, 2012, the court granted T.M.’s motion for appeal.

Standard of Review

Though delinquency proceedings may in many ways implicate criminal proceedings, they are nonetheless civil in nature. State ex rel. D.R., 01-0405 (La.App. 4 Cir. 10/13/10), 50 So.3d 927, 930 (citing In re C.B., 97-2783 (La.3/4/98), 708 So.2d 391, 400). As this Court, citing State ex. rel Batiste, 367 So.2d 784, 788 (La.1979), noted:

[jjuvenile delinquency proceedings do not fall within the category of criminal prosecutions, as is evident from long established jurisprudence ..., and the special juvenile provisions within the judiciary article of the constitution. La. Const.1974, art. 5, § 10, 18 and 19. Accordingly, since the constitution does not provide otherwise, the scope of review of this court in juvenile delinquency proceedings extends to both the law and the facts. Id.

State in Interest of R.V., 11-138 (La.App. 5 Cir. 12/13/11), 82 So.3d 402, 408. Because juvenile proceedings are not criminal proceedings, the scope of review in Louisiana extends to both law and facts. Id. This “clearly wrong” or “manifestly erroneous” standard of review is the same as is applied in other civil cases. State ex rel. D.R. at 931.

In this case, we apply this civil standard of review of facts and law to determine whether there was sufficient evidence of proof beyond a reasonable doubt to adjudicate T.M. delinquent for aggravated battery. In determining the sufficiency of the evidence, the court must determine whether the evidence, viewed in the light most favorable to the prosecution, is sufficient to convince a rational trier of fact that all of the elements of the crime have been proven beyond a treasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

Law and Argument

In her sole assignment of error, T.M. argues that the State failed to establish that T.M. had the requisite intent to commit the offense of aggravated battery. She asserts rather that her actions amounted to criminal negligence. T.M. also argues that the State failed to prove that the “pencil sharpener razor blade” was a dangerous weapon.

In response, the State argues that the requisite criminal intent was established by the very act of cutting L.A. and D.D. The State also contends that the razor blade is a dangerous weapon, inherently or due to the manner in which it was used.

In order for the court to adjudicate a child delinquent, the State must prove beyond a reasonable doubt that the child committed a delinquent act alleged in the petition. La. Ch.C. art. 883; State in Interest of R.T., 00-0205 (La.2/21/01); 781 So.2d 1239, 1241; State v. B.E., 616 So.2d 211, 214 (La.App. 5 Cir.1993).

In reviewing the sufficiency of the evidence, an appellate court must determine whether, upon viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could find that the State proved ah of the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Neal, 00-0674 (La.6/29/01); 796 So.2d 649, 657, cert. denied, 535 U.S. 940, 122 S.Ct. 1323, 152 L.Ed.2d 231 (2002); State v. Mickel, 09-953 (La.App. 5 Cir. 5/11/10); 41 So.3d 532, 534, unit denied, 10-1357 (La.1/7/11); 52 So.3d 885. The constitutional standard for appellate review in a juvenile proceeding is the same as that in an | (¡adult proceeding. State in Interest of R.T., supra (citing Jackson v. Virginia, supra).

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

In this case, T.M. was adjudicated delinquent for committing aggravated battery in violation of La. R.S. 14:34. Aggravated battery is defined as “battery committed with a dangerous weapon.” Battery is “the intentional use of force or violence upon the person of another.” La. R.S. 14:33. A dangerous weapon is “any gas, liquid or other substance or instrumentality, which, in the manner used, is calculated or likely to produce death or great bodily harm.” La. R.S. 14:2(A)(3). Accordingly, to convict a person of aggravated battery, the State must prove: (1) that the defendant intentionally used force or violence against the victim; (2) that the force or violence was inflicted with a dangerous weapon; and (3) that the dangerous weapon was used in a manner likely to cause death or great bodily harm. State v. Taylor, 04-54 (La.App. 5 Cir. 4/27/04); 874 So.2d 297, 301, writs denied, 04-1495 (La.11/8/04); 885 So.2d 1120 and 04-1326 (La.11/8/04); 885 So.2d 1122.

First, T.M. disputes that she had the requisite criminal intent to commit an aggravated battery. This Court has held that aggravated battery is a general intent crime. State v. Barnes, 491 So.2d 42, 50 (La.App. 5 Cir.1986). General criminal intent is present whenever there is specific intent, and also when the circumstances indicate that the offender, in the ordinary course of human experience, must have |7adverted to the prescribed criminal consequences as reasonably certain to result from his act or failure to act. La. R.S. 14:10(2). In general intent crimes, criminal intent necessary to sustain a conviction is shown by the very doing of the acts which have been declared criminal. State v. Howard, 638 So.2d 216, 217 (La.1994). Thus, aggravated battery requires neither the infliction of serious bodily harm nor the intent to inflict serious injury. Id.

In the instant case, T.M. held a razor blade in a gloved hand to conceal the blade and perhaps as a precaution against cutting herself. This seems to indicate that T.M. was aware that the blade was capable of inflicting injury. She then offered the pretense of a high-five to her classmates in order to cut them with the blade. Here, the evidence at least supports a finding of general intent: T.M. must have known that some injury was reasonably certain to result from her act of high-fiving her classmates with a razor blade in her hand.

Turning to T.M.’s argument that the pencil sharpener razor blade is not a dangerous weapon, however, virtually any item, no matter how innocuous, can be considered a “dangerous weapon” provided that the manner in which it is used is likely to produce death or bodily harm. State v. Pleasant, 10-1533 (La.App. 4 Cir. 5/18/11), 66 So.3d 51, 56 (citations omitted). Louisiana jurisprudence has upheld determinations that a stick, an ink pen, rum, a tennis shoe, and a metal pipe were dangerous weapons in the manners used in individual cases. Id.

Here, T.M. employed a razor blade taken from a pencil sharpener. The U.S. Supreme Court has implied that a razor blade is a weapon. See U.S. v. Robinson, 414 U.S. 218, 254, 94 S.Ct. 467, 485, 38 L.Ed.2d 427 (1973). Likewise, so have our brethren on the Second Circuit. See State v. Marshall, 46,457, p. 9 (La.App. 2 Cir. 8/10/11), 70 So.3d 1106, 1112.

| ^Regardless of whether a razor blade is an inherently dangerous weapon, the inquiry is whether the manner in which the instrumentality was used, was “calculated or likely to produce death or great bodily harm.” La. R.S. 14:2(A)(3). Here, T.M. used the razor blade to cut the victims’ skin and cause them to bleed. We find no error in the trial court’s finding that the “pencil sharpener razor blade,” in the manner in which it was used in this case, was a dangerous weapon. See, State v. Johnson, 598 So.2d 1152, 1158 (La.App. 1 Cir.1992), writ denied, 600 So.2d 676 (La.1992) (ink pen used to stab the victim in the hand during a robbery was a dangerous weapon).

In conclusion, viewing the foregoing evidence in the light most favorable to the prosecution, we find that the State presented sufficient evidence to convince a rational trier of fact that all the elements of aggravated battery were proven beyond a reasonable doubt. This assignment of error has no merit.

Error patent discussion

As is our routine practice, we have reviewed the record for errors patent, as mandated by La.C.Cr.P. art. 920. State ex rel. T.S., 04-1111, p. 9 (La.App. 5 Cir. 3/1/05), 900 So.2d 77, 82. We note that the transcript reveals that the judge failed to advise T.M. of the two-year prescriptive period for seeking post-conviction relief as mandated by La.C.Cr.P. art. 930.8. Therefore, by this opinion, we advise T.M. that no application for post-conviction relief, including an application which seeks an out-of-time appeal, shall be considered if it is filed more than two years after the judgment of conviction and sentence has become final under the provisions of La. C.Cr.P. arts. 914 and 922. State ex rel. D.W., 09-855 (La.App. 5 Cir. 9/14/10), 47 So.3d 1048, 1063.

AFFIRMED

      . The delinquency petitions reflect that T.M. was born on August 10, 1996 so she was 15 years old on the date of the incident. In order to maintain confidentiality, La. Ch.C. art. 412 mandates that any minor involved is referenced only by their initials. See also, La. R.S. 46:1844.

      . The teens described "dapping” as slang for "hitting hands” like a low "high five.”

      . Apparently, T.M. obtained the "pencil sharpener razor” by dismantling a small, manual sharpener.

      . Further, the record contains T.M.’s probation officer's "Report to the Court” indicates that T.M. initially stated, "I’m going to jail. I didn't know a razor from a pencil sharpener could cut someone like that.”


author: MARC E. JOHNSON, Judge.

text:
    STATE of Louisiana v. Enoch KINARD.
    No. 12-KA-446.
    Court of Appeal of Louisiana, Fifth Circuit.
    Nov. 27, 2012.

      Thomas F. Daley, District Attorney, Philip Prescott, Assistant District Attorney, Edgard, LA, for Plaintiff/Appellee.
    Jane L. Beebe, Attorney at Law, New Orleans, LA, for Defendant/Appellant.
    Panel composed of Judges SUSAN M. CHEHARDY, FREDERICKA HOMBERG WICKER, and MARC E. JOHNSON.
   MARC E. JOHNSON, Judge.

I ¡¿Defendant, Enoch Kinard, appeals the trial court’s denial of his motion to suppress under State v. Crosby, 338 So.2d 584 (La.1976). For the reasons that follow, we affirm.

Defendant was initially charged in a bill of information on May 19, 2011 with illegal possession of a stolen firearm in violation of La. R.S. 14:69.1, to which he pled not guilty. The State subsequently amended the bill of information to charge defendant with possession of a firearm by a convicted felon in violation of La. R.S. 14:95.1. He was re-arraigned on August 17, 2011, and again pled not guilty. Meanwhile, prior to the amendment of the bill of information, defendant filed a motion to suppress the evidence. The trial court denied the motion after a hearing on October 19, 2011. Thereafter, on February 14, 2012, the State again amended the bill of information and charged defendant with attempted possession of a firearm by a convicted felon in violation of La. R.S. 14:27 and 14:95.1. When defendant was re-arraigned on the amended charge, he pled guilty under North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970), and State v. Crosby, supra. In accordance with a plea agreement, the trial court sentenced defendant to seven years with the Department of Corrections.

Defendant filed this appeal seeking review of the trial court’s denial of his motion to suppress. The record shows that defendant’s guilty plea was accepted pursuant to Crosby, which allows appellate review if, at the time the plea is entered, defendant expressly reserved his right to appeal a specific adverse ruling in the case. Here, defendant failed to specify which pre-trial ruling he desired to reserve for appeal.

A defendant’s failure to specify which pre-trial ruling he desires to reserve for appeal as part of a guilty plea entered pursuant to Crosby limits the scope of appellate review, but it does not preclude review altogether. State v. Joseph, 03-315 (La.5/16/03), 847 So.2d 1196 (per curiam). Absent specification, the appellate court should presume the Crosby reservation preserves review of those evidentiary rulings that “go to the heart of the prosecution’s case,” such as the denial of a motion to suppress, and not rulings that may affect the conduct of the trial but do not substantially relate to guilt. Id., 847 So.2d at 1196-97. Thus, we find the denial of defendant’s motion to suppress evidence is renewable on appeal.

Defendant argues the trial court erred in denying his motion to suppress the evidence because the firearm was illegally seized from his vehicle. He contends there was no reasonable suspicion for the stop and there was no probable cause to arrest him. Thus, he contends the firearm should be suppressed as “fruit of the poisonous tree.”

At the suppression hearing, Deputy Keith Carroll, with the St. John Sheriffs Office Criminal Patrol, testified he was patrolling East Thirteenth Street in Reserve, which is the “Reserve Projects,” around midnight on March 21, 2011 |4when he observed a vehicle parked southbound in the northbound lane obstructing traffic. He explained the vehicle was parked in the middle of the small street in front of an empty parking lot.

Deputy Carroll, who was traveling northbound, stopped and exited his vehicle. He approached the parked vehicle and asked defendant to step out of the car. When defendant opened the door, a gun fell out of the vehicle. Deputy Carroll explained that the butt of the gun fell out of the car on the side of the seat, but the gun did not hit the ground. Deputy Carroll testified the area was not well lit and there was a lot of crime going on in the area. Upon seeing the gun, Deputy Carroll placed defendant in handcuffs and detained him in front of the vehicle. He then retrieved the gun and cleared it to make it safe. Deputy Carroll ran the serial number of the gun through the NCIC and learned the gun was stolen. Thereafter, he placed defendant under arrest.

Deputy Carroll was the sole witness at the suppression hearing. The trial court took the matter under advisement and subsequently denied the motion to suppress.

In a hearing on a motion to suppress evidence seized without a warrant, the State bears the burden of establishing the admissibility of evidence. La.C.Cr.P. art. 703(D). The trial court’s denial of a motion to suppress is afforded great weight and its ruling will not be set aside unless the preponderance of the evidence clearly favors suppression. State v. Morton, 08-164 (La.App. 5 Cir. 7/29/08), 993 So.2d 651, 655.

The Fourth Amendment to the United States Constitution and Article I, § 5 of the Louisiana Constitution prohibit unreasonable searches and seizures. If evidence is derived from an unreasonable search or seizure, the proper remedy is exclusion of the evidence from trial. State v. Leonard, 06-361 (La.App. 5 Cir. 10/31/06), 945 So.2d 764, 766. Warrant-less searches and seizures are per se unreasonable unless justified by one of the exceptions to the warrant requirement. Id.

The right of law enforcement officers to stop and interrogate those reasonably suspected of engaging in criminal activity is recognized by La.C.Cr.P. art. 215.1, as well as by state and federal jurisprudence. See Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), and State v. Belton, 441 So.2d 1195, 1198 (La.1983), cert. denied, 466 U.S. 953, 104 S.Ct. 2158, 80 L.Ed.2d 543 (1984). Generally, the decision to stop a vehicle is reasonable when the police have probable cause to believe a traffic violation has occurred. State v. Waters, 00-356, (La.3/12/01), 780 So.2d 1053, 1056, citing Whren v. United States, 517 U.S. 806, 810, 116 S.Ct. 1769, 1772, 135 L.Ed.2d 89 (1996). The standard is purely objective and does not take into consideration the subjective beliefs or expectations of the detaining officer. Id. “When an officer observes what he objectively believes is a traffic offense, the decision to stop the vehicle is reasonable, regardless of the officer’s subjective motivation.” State v. Hunt, 09-1589 (La.12/1/09), 25 So.3d 746, 753.

In this case, the deputy observed defendant’s vehicle parked in the middle of the street and explained that he would have had to go around the vehicle to continue driving on that street. He testified he stopped to investigate because the vehicle was obstructing traffic. Obstructing traffic is prohibited under La. R.S. 14:100.1; thus, Deputy Carroll had probable cause to believe defendant had | (¡committed a traffic violation, which justified the investigatory stop. The fact the deputy did not issue a traffic citation is irrelevant to the constitutionality of the stop. State v. Martin, 11-160 (La.App. 5 Cir. 12/28/11), 83 So.3d 230, 238.

Once an officer has lawfully stopped a vehicle for a traffic violation, he is authorized to order the driver out of the vehicle pending completion of the stop. State v. Smith, 07-815 (La.App. 5 Cir. 3/11/08), 982 So.2d 821, 825, unit denied, 08-927 (La.11/14/08), 996 So.2d 1088. Thus, Deputy Carroll had the authority to order defendant to exit the vehicle.

When defendant exited his vehicle, the deputy observed a gun fall on the side of the seat. Upon seeing the gun, Deputy Carroll handcuffed defendant and placed him at the front of the car.

A police officer is not required to take unnecessary risks in performing his duties; rather, he is authorized to take such steps as are reasonably necessary to protect his safety and to maintain the status quo during the course of a Terry stop. State v. Morton, 993 So.2d at 657. Handcuffing a person does not exceed the scope of an investigatory stop if it is objectively reasonable under the circumstances confronting the police. State v. Thompson, 11-915 (La.5/8/12), 93 So.3d 553, 570. In order to prove that an investigatory detention involving the use of handcuffs did not exceed the limits of a Terry stop, the State must “point to some specific fact or circumstance that could have supported a reasonable belief that the use of restraints was necessary to carry out the legitimate purpose of the stop without exposing law enforcement officers, the public, or the suspect himself |7to an undue risk of harm.” Id., quoting United States v. Acosta-Colon, 157 F.3d 9, 18-19 (1st Cir.1998).

This stop occurred around midnight in a dimly lit area with known crime. Deputy Carroll, who was alone, handcuffed defendant so he could retrieve the gun, which was within defendant’s immediate reach, and make it safe. The United States Supreme Court has recognized that many police officers have been shot as a consequence of traffic stops. Pennsylvania v. Mimms, 434 U.S. 106, 110, 98 S.Ct. 330, 333, 54 L.Ed.2d 331 (1977). Considering the circumstances, we find Deputy Carroll was justified in handcuffing defendant as a safety precaution, and that those actions did not rise to the level of an arrest for which probable cause was required.

After handcuffing defendant, Deputy Carroll retrieved the gun from the car. In the course of an investigatory stop, “[i]f the law enforcement officer finds a dangerous weapon, he may take and keep it until the completion of the questioning, at which time he shall either return it, if lawfully possessed, or arrest such person.” La. C.Cr.P. art. 14:215.1(C). Thus, Deputy Carroll was entitled to take temporary custody of the weapon for his own safety. See State v. White, 08-1002 (La.1/21/09), 1 So.3d 439, 443, where the Louisiana Supreme Court found that a police officer was entitled to take possession of a handgun found on the defendant’s lap during a traffic stop for the protection of the officer and her partner.

Under La. C.Cr.P. art. 14:215.1(C), Deputy Carroll could only return the weapon to defendant if it was lawfully possessed. Upon further investigation, which involved a computer check, Deputy Carroll determined the gun was stolen. At that point, Deputy Carroll had probable cause to arrest defendant for illegal possession of a stolen firearm.

| ^Accordingly, we find Deputy Carroll had reasonable suspicion to conduct an investigatory stop based on a traffic violation and had authority to order defendant to exit the car. His subsequent action of handcuffing defendant after seeing a gun fall from the car was reasonable and did not rise to the level of an arrest. He then had authority under La. C.Cr.P. art. 14:215.1 (C) to retrieve the gun from the car. Upon taking temporary custody of the gun, Deputy Carroll had a duty to determine whether defendant lawfully possessed the gun before returning it to him. Once Deputy Carroll determined during the confines of the traffic stop that the gun was stolen, he had probable cause to arrest defendant. For these reasons, we find no error in the trial court’s denial of defendant’s motion to suppress the evidence.

In accordance with La.C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975); and State v. Weiland, 556 So.2d 175 (La.App. 5th Cir.1990), we have reviewed the record for errors patent.

We first note that defendant received an illegally lenient sentence in that he did not receive the mandatory fine of between $500 and $2,000 as required by La. R.S. 14:95.1(B). While we have the authority to correct an illegal sentence, our authority is permissive rather than mandatory. La.C.Cr.P. art. 882. When a defendant is sentenced pursuant to a guilty plea, this Court has declined to correct an illegally lenient sentence, recognizing that the appellate court should refrain from employing errors patent review to set aside guilty pleas about which the defendant makes no complaint and that resulted in the disposition of the case favorable to the defendant. State v. McGee, 09-102 (La.App. 5 Cir. 9/29/09), 24 So.3d 235, 242. Additionally, we note defendant is indigent, since he is represented by the Louisiana Appellate Project, which provides appellate services for indigent criminal defendants in non-capital felony case. Since defendant’s sentence resulted from a guilty plea and he is indigent, we decline to exercise our ^authority to correct the illegally lenient sentence. See State v. Ford, 11-91 (La.App. 5 Cir. 12/13/11), 81 So.3d 841, 847, writ denied, 12-64 (La.4/20/12), 85 So.3d 1269.

Next, we find the record is somewhat confusing as to the advisal given to defendant regarding the prescriptive period for filing an application for post-conviction relief. The waiver of rights form and the February 14, 2012 plea colloquy transcript reflect defendant was properly advised of the two-year prescriptive period under La. C.Cr.P. art. 930.8. However, the February 14, 2012 minute entry, the sentencing transcript, and the commitment reflect an incomplete advisal of the prescriptive period. Because of the inconsistency and potentially misleading advice given to defendant regarding the prescriptive period, we are advising defendant, by means of this opinion, that under La. C.Cr.P. art. 930.8(A), no application for post-conviction relief, including applications which seek an out-of-time appeal, shall be considered if it is filed more than two years after the judgment of conviction and sentence has become final under the provisions of La.C.Cr.P. art. 914 or 922, unless any of the enumerated exceptions apply. See State v. Bush, 11-257 (La.App. 5 Cir. 10/25/11), 77 So.3d 439, 444-445.

DECREE

We And no error in the trial court’s denial of defendant’s motion to suppress the evidence. Accordingly, defendant’s conviction and sentence are affirmed.

CONVICTION AND SENTENCE AFFIRMED

      . La R.S. 14:100.1, which address the obstruction of public passages, provides in pertinent part:
      No person shall wilfully [sic] obstruct the free, convenient and normal use of any public sidewalk, street, highway, bridge, alley, road, or other passageway, or the entrance, corridor or passage of any public building, structure, water craft or ferry, by impeding, hindering, stifling, retarding or restraining traffic or passage thereon or therein.
      Whoever violates the provisions of this Section shall be guilty of a misdemeanor and upon conviction thereof shall be fined not more than five hundred dollars or imprisoned for not more than six months, or both fined and imprisoned.

      . See also State v. Barnard, 37,032 (La.App. 2 Cir. 5/14/03), 847 So.2d 99, where the court found the officer was justified in conducting an investigatory stop where the defendant had stopped his vehicle in the middle of his lane of traffic. The court noted that the officer had probable cause to believe the defendant had committed a traffic violation despite the fact the officer did not intend to issue a citation.