author:
CONERY, Judge.
      AMY, J.,

text:
    STATE of Louisiana v. Ashaki Okung KELLY.
    No. 14-522.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 10, 2014.
    Rehearing Denied Feb. 4, 2015.

      John Foster DeRosier, District Attorney, Karen C. McLellan, Assistant District Attorney, Lake Charles, LA, for Plaintiff/Appellee, State of Louisiana.
    Douglas Lee Harville, Louisiana Appellate Project, Shreveport, LA, for Defen-dani/Appellant, Ashaki Okung Kelly.
    Court composed of SYLVIA R. COOKS, MARC T. AMY, and JOHN E. CONERY, Judges.
   CONERY, Judge.

I,On March 14, 2013, a Calcasieu Parish Grand Jury indicted Defendant, Ashaki Okung Kelly, charging him with three counts of aggravated rape of D.V., a juvenile victim under the age of thirteen with date of birth May 29, 2000, in violation of La.R.S. 14:42. The grand jury also charged Defendant with three counts of oral sexual battery of juvenile victim A.V. The trial court conducted a bench trial pursuant to stipulation of the parties on May 21, 2013, and found Defendant guilty of the responsive verdict of one count of a lesser-included offense, molestation of the juvenile, D.V., in violation of La.R.S. 14:81.2 with offense date of November 24, 2012. The court acquitted Defendant on all other charges.

At a sentencing hearing on October 2, 2013, the court sentenced Defendant to fifteen years at hard labor, without benefit of parole, probation, or suspension of sentence. On October 4, 2013, the court informed Defendant, in open court, regarding his duty to register as a sex offender.

Defendant now appeals his conviction, assigning two errors. Defendant’s assignments of error lack merit and we affirm Defendant’s conviction. We vacate Defendant’s sentence, finding it to be an illegal sentence, and remand this case to the trial court for resentencing pursuant to La.R.S. 14:81.2(D)(1).

| ¡¿FACTS AND PROCEDURAL HISTORY

Two sisters, D.V. and A.V., were living with their mother and her fiancé, Defendant herein. The two minor children claimed that Defendant inappropriately touched them while he was watching them when their mother was at work. Following an investigation, Defendant was charged by a Calcasieu Parish grand jury by bill of indictment with three counts of aggravated rape of D.V., a juvenile under the age of thirteen with date of birth May 29, 2000, and two counts of oral sexual battery of A.V., in violation of La.R.S. 14:42 and 14:43.3, respectively. Defendant waived his right to a jury trial and his case proceeded to a bench trial on May 21, 2013. The grand jury indictment alleged and the evidence at trial showed through the testimony of D.V. that Defendant had inappropriately touched her on November 24, 2012, and that she had timely reported that incident to her mother and to the authorities. Further, D.V. testified at Defendant’s May 21, 2013 trial that she was twelve years old when the November 24, 2012 incident occurred.

Based on the evidence presented at trial, the trial court found Defendant guilty of the responsive verdict of molestation of a juvenile. It was uncontradicted that D.V.’s date of birth was May 29, 2000, and that the date of molestation was November 24, 2012. Therefore, there was no factual dispute that the victim was twelve at the time of the incident on November 24, 2012, as well as the fact that the victim was under the control and supervision of Defendant at all times pertinent hereto.

Louisiana Revised Statutes 14:42 defines aggravated rape, in pertinent part, as:

A. Aggravated rape is a rape committed upon a person sixty-five years of age or older or where the anal, oral, or vaginal sexual intercourse is | adeemed to be without lawful consent of the victim because it is committed under any one or more of the following circumstances:
(4) When the victim is under the age of thirteen years. Lack of knowledge of the victim’s age shall not be a defense.

Molestation of a juvenile is a proper responsive verdict to aggravated rape. La. Code Crim.P. art. 814. Louisiana Revised Statutes 14:81.2 defines molestation of a juvenile, in pertinent part, as:

A. (1) Molestation of a juvenile is the commission by anyone over the age of seventeen of any lewd or lascivious act upon the person or in the presence of any child under the age of seventeen, where there is an age difference of greater than two years between the two persons, with the intention of arousing or gratifying the sexual desires of either person, by the use of force, violence, duress, menace, psychological intimidation, threat of great bodily harm, or by the use of influence by virtue of a position of control or supervision over the juvenile. Lack of knowledge of the juvenile’s age shall not be a defense.

The legislature has set forth enhanced penalties for molestation of a juvenile where, as here, the victim is under the age of thirteen:

D. (1) Whoever commits the crime of molestation of a juvenile when the victim is under the age of thirteen years shall be imprisoned at hard labor for not less than twenty-five years nor more than ninety-nine years. At least twenty-five years of the sentence imposed shall be served without benefit of probation, parole, or suspension of sentence.

La.R.S. 14:81.2(D)(1).

Following the trial court’s entry of the responsive verdict of molestation of a juvenile pursuant to La.Code Crim.P. art. 814 and La.R.S. 14:81.2, the trial court held a post-trial status conference on June 12, 2012, wherein the trial court acknowledged that the mandatory minimum sentence for molestation of a juvenile under thirteen was twenty-five years at hard labor without benefit of probation, parole, or suspension of sentence. The trial court then requested that the State and |4Pefendant meet to see if- an agreement on a lesser sentence could be reached, presumably in accordance with La.Code Crim.P. art. 890.1(A)(2):

But I’m not really inclined to give him the 25 years if I can get around it. Okay. But I think he ought to have some substantial time.
It would be really nice if /all could work out a sentencing recommendation and just let me sentence the man to that and be done with it. And it wasn’t 25 years but it wasn’t 10 years either, okay. It was somewhere in between that, that I thought would be an appropriate sentence based on what we have.
So /all talk about it. If /all can’t work it out then I’ll deal with it. I will have a motion for a new trial and I can consider that. But I’m gonna use the resources the Court has within the discretion of the Court in order to accomplish what the Court thinks is fair in this case. And I think a fair sentence would be between 10 and 25 years, but not 24 25 years and not ten years. So /all talk.

No such agreement to reduce sentence was reached, nor was it permissible in this case, as La.Crim.P. art. 890.1(D) provides, “D. The provisions of this Article shall not apply to a sex offense as defined in R.S. 15:541 or to any of the following crimes of violence.” The definition of “sex offense” as set forth in La.R.S. 15:541(24)(a) includes La.R.S. 14:81.2, molestation of a juvenile..

Defendant then filed post-trial motions, including a motion to reconsider verdict and/or a motion for a new trial, and a hearing was set for the same day as sentencing. The trial court heard and denied all post-trial motions on October 2, 2013, refused to reconsider its verdict, and reaffirmed its verdict that there was sufficient evidence presented at trial to prove Defendant guilty of molestation of the juvenile D.V. beyond a reasonable doubt.

Is At sentencing on October 2, 2018, the trial court attempted to “take back” the finding that the victim was under the age of thirteen. In Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), the Supreme Court held that facts that could potentially increase the penalty for the crime charged beyond the maximum must be submitted to the jury and proven beyond a reasonable doubt to be able to be used by the judge when sentencing the defendant. The grand jury indictment specifically alleged that the victim’s date of birth was May 29, 2000. The indictment alleges on its face that the victim was twelve at the time of the alleged offense with a date of November 24, 2012, and, indeed, those dates were not in controversy. See State v. Breaux, 13-917 (La.App. 3 Cir. 2/12/14), 2014 WL 575844 (unpublished opinion) (holding that there was sufficient evidence that the victim was under the age of thirteen at the time of the crime, substantiating the enhanced penalty under molestation of a juvenile); State v. Moses, 13-54, p. 5 (La.App. 3 Cir. 6/5/13), 2013 WL 2420830 (unpublished opinion) (holding that “Because Defendant was the only adult present, and [the victim’s mother] allowed [the victim] to leave home with Defendant, Defendant had supervision and control of N.M.”).

As to the post-trial motions filed, a motion for post judgment verdict of acquittal can be used by a defendant after a jury enters a verdict of the crime charged, but not after a bench trial, as in this case. There is no procedural mechanism for a motion to reconsider verdict. See State v. Williams, 04-1377 (La.App. 4 Cir. 12/1/04), 891 So.2d 26. In Williams, the fourth circuit stated:

Unlike a civil case where a trial judge may change his or her mind after rendering a judgment in a bench trial within the time delays for a new trial, the legislature has provided no procedural mechanism for a |Bdefendant to seek a reversal of a conviction decision made in a bench trial.

Id. at 32.

While a trial court has discretion to grant a new trial for sufficient grounds alleged pursuant to La.Code Crim.P. art. 851, no such grounds were alleged in this case. In fact, the motion in question is not in the record. In any event, the trial court denied the motions and upheld the verdict of molestation of a juvenile. We note that the trial court had no specific procedural basis on which to “take back” his Apprendi finding that the victim was under the age of thirteen. Indeed, the victim’s date of birth was not at issue and is not in the category of factual findings that can be “taken back,” absent proof that the date of birth was factually incorrect. |7Here, both the victim and the mother testified that the victim was twelve years old at the time of the incident. The grand jury indictment alleged and the trial court had specifically noted the victim’s date of birth and the date the offense was committed:

However, I do think it has been established beyond a reasonable doubt, to me, that the defendant is guilty of molestation of a juvenile, and I think that juvenile was D.C. Her date of birth is 5/29/2000.
And so therefore I will find him guilty, because I think sufficient evidence supports beyond a reasonable doubt conviction only on this charge, molestation on the person of D.V. on [November] 2/th, 2012, within the bill of information, in Calcasieu Parish. She said it happened Saturday. She was staying on Winter-halter Street, and so I think all elements of that crime was proven. So I find him so guilty — so find the defendant guilty of that charge.

(Emphasis added.) Nevertheless, the trial court later stated at the October 2, 2013 sentencing hearing:

So the defendant is before the court for sentencing and let the Court note the record — that the Court found the defendant guilty of molestation of a juvenile with a date of offense being November 21h 2012. That was the Court’s finding. Okay?
So I’m going to sentence him consistent with that finding. The Court did not make a finding that he was guilty of molestation of a juvenile of a person under the age 13. That was not a court finding.
The Court was very specific in its finding. The Court finds the defendant guilty of molestation of a juvenile with an offense date occurring on the — where is that? I’ve got it right here — of November the 2Uh, 2012. Now I go to the statute and look at molestation of a juvenile.
|⅜81.2. It says, “Whoever commits the crime of molestation of a juvenile, when the victim is 18 years of age or older but has not yet attained the age of 17, shall be fined not more than $5,000 or imprisonment with or without hard labor for not less than five years nor more than ten years.” If it’s under the age of 13, of course, it’s 25 to life.
The Court did not make a finding that the victim was under the age of 13, that the victim—
Let me read this other statute. (Reviewing statute.) Okay. So the Court finds that the defendant, sir, you are guilty of molestation of a juvenile, and that the Court also will find — did not make a finding under age 13 but certainly was under the age of 17. So your sentencing range is from 5 to 20 years. And the Court will sentence you therefore to 15 years Department of Corrections, without the benefit of parole, probation or suspension of sentence.
That’s my sentence because I made a finding that the victim was under the age of 17, but I did not make a finding that the victim was under the age of 13. So between 13 and 17 is the range. And I’m going to make that sentence. I think it’s within the statute.
We can do that [filling out sex offender notification forms] Friday. We’ll do that Friday. He [the Defendant] said he don’t understand stuff. Go explain it to him, what happened today, and that he just missed a 25-year sentence. And if he keeps talking, I’m going to change my mind. Okay ?

(Emphasis added.) The trial court, pursuant to stipulation of. defense counsel to waive sentencing delays, then sentenced Defendant to fifteen years at hard labor without benefit of probation, parole, or suspension of sentence on the charge of molestation of a juvenile, but did not specify the subsection of La.R.S. 14:81.2 under which it was determining Defendant’s sentence.

| ¡¡Following the imposition of Defendant’s sentence, Defendant appealed, assigning two errors for our .review. The State responded to Defendant’s assignments of error, but did not assert any error of its own on appeal and did not object at sentencing to the trial court’s sentence as being illegal. Defendant, likewise, did not appeal the sentence. No opportunity was afforded to the victim or her family members to speak on the issue of sentencing pursuant to La.R.S. 46:1844.

ASSIGNMENTS OF ERROR

Assignment of Error One

In his first assignment of error, Defendant argues the trial evidence was insufficient to support his conviction. The analysis for such a claim is well-settled:

When the issue of sufficiency of evidence is raised on appeal, the critical inquiry of the reviewing court is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia, 448 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560, rehearing denied, 444 U.S. 890, 100 S.Ct. 195, 62 L.Ed.2d 126 (1979); State ex rel. Graffagnino v. King, 486 So.2d 559 (La.1983); State v. Duncan, 420 So.2d 1105 (La.1982); State v. Moody, 393 So.2d 1212 (La.1981). It is the role of the fact finder to weigh the respective credibility of the witnesses, and therefore, the appellate court should not second guess the credibility determinations of the triers of fact beyond the sufficiency evaluations under the. Jackson standard of review. See State ex rel. Graffagnino, 436 So.2d 559 (citing State v. Richardson, 425 So.2d 1228 (La.1983)). In order for this Court to affirm a conviction, however, the record must reflect that the state has satisfied its burden of proving the elements of the crime beyond a reasonable doubt.

State v. Kennerson, 96-1518, p. 5 (La.App. 3 Cir. 5/7/97), 695 So.2d 1367,1371.

| ^Defendant argues that the victims, who both testified, were not credible. He points out that the trial court questioned the credibility of the girls on several points.

A review of the transcript of the trial court’s reasoning shows that the trial court closely scrutinized the credibility of the victims in the present case. Defendant complains that the testimony suggested that some unknown person had spoken to the girls about their allegations and for that reason, the allegations were not credible. The trial court noted that the victims used terminology that did not seem normal for young girls. Thus, the record demonstrated that the trial court took into account the potential role such an unknown party could have played. The trial court’s negative assessment of that role was part of its overall assessment of much of the victims’ testimony and ultimately benefit-ted Defendant, as the State was seeking a conviction on three counts of aggravated rape of D.V., which carries a life sentence on each count. Further, based on the trial court’s analysis of credibility, Defendant was acquitted of two counts of oral sexual battery of A.V., each count carrying a potential penalty of up to ten years at hard labor.

Defendant also complains that some of the trial court’s language indicated that it did not adhere to the reasonable doubt standard. For example, Defendant points out that the trial court remarked that some testimony led it “to believe more than likely that child was, in fact, molested.” However, we believe that the record as a whole clearly shows that the trial court applied the reasonable doubt standard to the evidence and correctly found Defendant guilty of the responsive verdict of molestation of the juvenile, D.V. The trial court stated:

However, I do find that the child was, I think, molested on Saturday, the 24th of November 2012. That is within the time frame that the aggravated rape charge is alleged in the bill.
JLu- • • •
And so therefore I will find him guilty, because I think sufficient evidence supports beyond a reasonable doubt conviction only on this charge, molestation on the person of D.V. on [November] 24th, 2012, within the bill of information, in Calcasieu Parish. She said it happened Saturday. She was staying on Winter-halter Street, and so I think all elements of that crime was proven. So I find him so guilty — so find the defendant guilty of that charge.

Defendant’s assignment is essentially an attack on credibility in a case in which the credibility issues at trial were taken into account and appropriately dealt with by the trial court. We again note that credibility is a matter for the fact-finder. “It is well-settled that a jury is free to believe some, none, or all of any witness’s testimony.” State v. Perkins, 11-955, p. 10 (La.App. 3 Cir. 3/7/12), 85 So.3d 810, 817; see also Kennerson, 695 So.2d 1367. In this case, the trial judge was the fact finder and there is a sufficient basis in the record to support the conviction.

For these reasons, this assignment lacks merit.

Assignment of Error Two

In his second and final assignment of error, Defendant argues that the trial court’s conduct of the proceedings deprived him of a fair trial. First, Defendant argues that the trial court failed to assure that he was arraigned. However, La.Code Crim.P. art. 555 states:

Any irregularity in the arraignment, including a failure to read the indictment, is waived if the defendant pleads to the indictment without objecting thereto. A failure to arraign the defendant or the fact that he did not plead, is waived if the defendant enters upon the trial without objecting thereto, and it shall be considered as if he had pleaded not guilty.

Defendant does not indicate that he objected to the lack of arraignment or was prejudiced thereby. This portion of his argument has no merit.

|12Next, Defendant argues that D.V.’s testimony that Defendant “touched her butt” with his genitals formed the main basis of Defendant’s conviction and came forth only after the trial court allowed multiple direct and cross-examinations of D.V. In support of his argument, Defendant points to the trial court’s statement that “I solicited evidence that maybe as a trial judge I might have asked more questions than I probably should have, but in an effort to look at the truth and find the truth.” Therefore, Defendant contends that D.V.’s statement, elicited during her third direct examination, should not have been admitted, and without that statement, Defendant claims there is insufficient evidence to support his conviction for the crime of molestation of a juvenile. He cites no jurisprudence to support this contention.

We note that, La.Code Evid. art. 614 states:

A. Calling by court. The court, at the request of a party or if otherwise authorized by legislation, may call witnesses, and all parties are entitled to examine witnesses thus called.
B. Questioning by court. The court may question witnesses, whether called by itself or by a party.
C. Objections. Objections to the calling of witnesses by the court or to questioning of witnesses by it may be made at the time or at the next available opportunity when the jury is not present.
D.Exception. In a jury trial, the court may not call or examine a witness, except upon the express consent of all parties, which consent shall not be requested within the hearing of the jury.

This was not a jury trial. In State v. Layssard, 310 So.2d 107, 108 (La.1975), the supreme court stated:

Where the judge is the trier of fact he has the right to question the witness to clarify the evidence in his mind. Unless his participation in the trial is to such an extent and of such a nature that it deprives the defendant of a fair trial, there is no error.

| isSee also State in the Interest of D.R., 10-405 (La.App. 4 Cir. 10/13/10), 50 So.3d 927.

The record shows that Defendant made no contemporaneous objection to the trial court’s questioning. Counsel acquiesced to the procedure. The trial court again asked counsel at the motion for new trial whether he had any objection to the trial court’s questioning of the witnesses. Counsel again lodged no objection to the trial court’s questioning, arguing only that the trial court should have read the victim’s mother her Miranda rights prior to her being questioned, which is not at issue here. Due to the lack of contemporaneous objection by Defendant, we find this argument lacks merit. The trial judge’s participation in this trial did not deprive this Defendant of a fair trial. See La.Code Crim.P. art. 841; La.Code Evid. art. 103(A)(1); La.Code Evid. art. 614(C); In the Interest of D.R., 50 So.3d 927; Layssard, 310 So.2d 107.

Defendant’s next complaint is that the State rested before formally introducing into evidence video recordings of interviews with the victims. Defendant observes that the trial court denied his motion for acquittal after the State rested. After Defendant called his sole 'witness, the trial court asked whether he objected to the introduction of the recordings. Defendant did object, but the trial court overruled the objection. Defendant complains the trial court made a sua sponte decision to admit the recordings, but this characterization is not supported by the record. During the State’s case-in-chief, the trial court had actually deferred ruling on the admissibility of the recordings. La.Code Evid. art. 611(A) states:

A. Control by court. Except as provided by this Article and Code of Criminal Procedure Article 773 [re: order of evidence], the parties to a proceeding have the primary responsibility of presenting the evidence and examining the witnesses. The court, however, shall 114exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence so as to:
(1) Make the interrogation and presentation effective for the ascertainment of the truth;
(2) Avoid needless consumption of time; and
(3) Protect witnesses from harassment or undue embarrassment.

Louisiana Code of Criminal Procedure Article 765(5) states, in pertinent part, “The court in its discretion may permit the introduction of additional evidence prior to argument[.]” Reading these provisions together, we find that the trial court acted well within its discretion in admitting the video recordings at issue. This argument lacks merit.

The final paragraph of Defendant’s argument alleges that the trial court’s actions mentioned in the rest of the assignment “establish a pattern of conduct that prejudiced” him. However, Defendant cites no jurisprudence to indicate that a “pattern of conduct” constitutes reversible error. The State suggests that Defendant’s contention is merely a “cumulative error” argument. This court has explained:

We also reject the defendant’s assertion that, if his complaints cannot be reviewed due to lack of a contemporaneous objection, they should be considered as a pattern of presenting the defendant as a bad person.
The combined effect of assignments of error, none of which warrant reversal on its own, does not deprive a defendant of his right to a constitutionally fair trial. State v. Rochon, 98-717, p. 14 (La.App. 5 Cir. 3/10/99), 733 So.2d 624, 633. The Supreme Court has noted that the “cumulative error” doctrine has lost favor in the Louisiana courts. State v. Draughn, 05-1825, p. 70 (La.1/17/07), 950 So.2d 583, 629. Significantly, the Supreme Court in State v. Manning, 03-1982 (La.10/19/04), 885 So.2d 1044, quoted with approval Mullen v. Blackburn, 808 F.2d 1143, 1147 (5th Cir.1987), where the federal Fifth Circuit rejected the | ^cumulative error doctrine by noting that “twenty times zero equals zero.”
State v. Ayo, 08-468, pp. 29-30 (La.App. 5 Cir. 3/24/09), 7 So.3d 85, 104, writ denied, 09-1026 (La.3/5/10), 28 So.3d 1006.

State v. Marinello, 09-1260, p. 38 (La.App. 3 Cir. 10/6/10), 49 So.3d 488, 511, writs denied, 10-2494, 10-2534 (La.3/25/11), 61 So.3d 660, 661.

For the reasons discussed, this assignment lacks merit. We affirm Defendant’s conviction.

ERRORS PATENT

At the outset, we note that the sentence imposed by the trial court is an illegal sentence for the crime of molestation of a juvenile. Louisiana Revised Statutes 14:81.2(A)(1) provides:

(1) Molestation of a juvenile is the commission by anyone over the age of seventeen of any lewd or lascivious act upon the person or in the presence of any child under the age of seventeen, where there is an age difference of greater than two years between the two persons, with the intention of arousing or gratifying the sexual desires of either person, by the use of force, violence, duress, menace, psychological intimidation, threat of great bodily harm, or by the use of influence by virtue of a position of control or supervision over the juvenile. Lack of knowledge of the juvenile’s age shall not be a defense.

Defendant was charged with aggravated rape of the victim D.V., under the provisions of La.R.S. 14:42, which states in pertinent part:

A. [Wjhere the anal, oral, or vaginal sexual intercourse is deemed to be without lawful consent of the victim.
(4) When the victim is under the age of thirteen years.

The trial court returned a responsive verdict of molestation of a juvenile. The sentence imposed by the trial court, fifteen years at hard labor, without benefit 11fiof probation, parole, or suspension of sentence, does not follow any of the sentencing provisions of the statute.

If, as in this case, the victim was alleged to be under the age of thirteen, the sentencing provisions of La.R.S. 14:81.2(D)(1) would apply. Louisiana Revised Statutes 14:81.2(D)(1) provides:

Whoever commits the crime of molestation of a juvenile when the victim is under the age of thirteen years shall be imprisoned at hard labor for not less than twenty-five years nor more than ninety-nine years. At least twenty-five years of the sentence imposed shall be served without benefit of probation, parole, or suspension of sentence.

If the juvenile victim was over thirteen, Defendant was over seventeen, and the victim was under the control of Defendant, La.R.S. 14:81.2(B)(2) would apply, and it states:

Whoever commits the crime of molestation of a juvenile, when the victim is thirteen years of age or older but has not yet attained the age of seventeen, and when the offender has control or supervision over the juvenile, shall be fined not more than ten thousand dollars, or imprisoned, with or without hard labor, for not less than five nor more than twenty years, or both.

The sentence imposed follows neither of these two provisions and is an illegal sentence. Where, as in this case, the victim is under thirteen, the mandatory minimum sentence set forth by the legislature is twenty-five years to ninety-nine years, at least twenty-five years of which must be served without benefit of probation, parole, or suspension of sentence. La.R.S. 14:81.2(D)(1). Assuming the trial court had the discretion to find the juvenile was over thirteen and the correct sentencing provision is as provided in La.R.S. 14:81.2(B)(2), a fíne up to $10,000.00 and a sentence with or without hard labor for not less than five or more than twenty years, or both, the sentence is illegally lenient as the sentence imposed does not provide for a fine. It is also illegally harsh, as the sentence imposed by 117the trial court provides that it be served without benefit of probation, parole, or suspension of sentence and La.R.S. 14:81.2(B)(2) contains no such provision.

As we indicated, neither the State nor Defendant filed an appeal urging a sentencing error. However, where, as here, we can determine that the sentence on its face is illegal, La.Code Crim.P. art. 920(2) provides, “An error that is discoverable by a mere inspection of the pleadings and proceedings and without inspection of the evidence” may be corrected on appeal. La.Code Crim.P. art. 882(A) states, “An illegal sentence may be corrected at any time by the court that imposed the sentence or by an appellate court on review.”

Because we have determined that the sentence imposed is illegal based on a mere inspection of the pleadings and proceedings without inspection of the evidence pursuant to La.Code Crim.P. art. 920(2), we must remand the case to the trial judge for imposition of the correct sentence. La. Code Crim.P. art. 881.4(A). The sentence to be imposed has a sentencing range of twenty-five years to ninety-nine years and, in accordance with the mandatory minimum set forth by the legislature, “At least twenty-five years of the sentence shall be imposed without benefit of probation, parole, or suspension of sentence.” La.R.S. 14:81.2(D)(1).

We are aware that neither the State nor Defendant raised a sentencing error on appeal. We now discuss whether it is constitutionally permissible under the circumstances to vacate the illegally lenient sentence imposed by the trial court and remand for imposition of a more onerous sentence.

|1sAn illegal sentence is a sentence not authorized by law. See State v. Moore, 93-1632 (La.App. 3 Cir. 5/4/94), 640 So.2d 561, writ denied, 94-1455 (La.3/30/95), 651 So.2d 858. “It is well-established that a prisoner cannot escape punishment simply because the court committed an error in passing sentence.” Evans v. Secretary Pennsylvania Dept. of Corrections, 645 F.3d 650, p. 662 (3rd Cir. 2011) (citing Bozza v. United States, 330 U.S. 160, 166, 67 S.Ct. 645, 91 L.Ed. 818). Further, “a sentence may be increased when the original sentence did not conform to a statutory requirement.” U.S. v. Rosario, 386 F.3d 166 (2nd Cir.2004) (citing Bozza, 330 U.S. 160, 67 S.Ct. 645).

In State v. Williams, 00-1725 (La.11/28/01), 800 So.2d 790, our supreme court discussed the issue of whether an appellate court may recognize an illegally lenient sentence as a patent error pursuant to La.Code Crim.P. art. 882(A). In Williams, as here, the state did not object to the illegally lenient sentence and did not assign errors on appeal. The supreme court stated, “Although a criminal defendant has the constitutional right to have his conviction reviewed to insure that the State proved his guilt beyond a reasonable doubt, it is nonetheless well established that a defendant in a criminal case does not have a constitutional or statutory right to an illegal sentence.” Williams, 800 So.2d at 797. Further, the supreme court stated in Williams:

It is readily apparent that a significant distinction may be drawn between vindictiveness which, after appeal, increases a defendant’s sentencing exposure or increases a legal sentence, and the pro forma correction of an illegal sentence. When an illegal sentence is corrected, even though the. corrected sentence is more onerous, there is no violation of the defendant’s constitutional rights.

19/d. at 798. Thus, the supreme court held, “[a]n illegal sentence may be corrected at any time by ... an appellate court on review.” Id. at 802 (quoting La.Code Crim.P. art. 882(A)).

In State v. Clemons, 01-1032, p. 3 (La. App. 5 Cir. 2/26/02), 811 So.2d 1047, 1050, writ denied, 02-0866 (La.11/22/02), 834 So.2d 972, the court cited Williams with approval and held that, “under the general provisions of La.Code Crim.P. art. 882, an illegally lenient sentence may be corrected at any time by the reviewing court.” Writs were denied in the companion case of State v. Phillips, 02-0866 (La.11/22/02), 834 So.2d 972. In State v. Phillips, 35,554 (La.App. 2 Cir. 1/21/02), 806 So.2d 964, writ denied, 02-0866 (La.11/22/02), 834 So.2d 972, the second circuit found that the trial court failed to impose a mandated fine and remanded the ease for resentencing. Likewise, in Clemons, the fifth circuit found that the trial court did not impose a mandated fine or inform the defendant that his sentence was to be served without benefit of probation, parole, or suspension of sentence. The fifth circuit remanded 'the case to the trial court for resentencing. In both- cases, patent error was found based on an illegally lenient sentence and the cases were remanded for imposition of a more onerous sentence. In both cases, the supreme court denied writs. Just as he did in Williams, then Chief Justice Calogero dissented to the denial of the writs on this issue, this time joined by Justice Johnson (now Chief Justice) and Justice Weimer. The dissent in Phillips stated:

For many years the law in this state was that an appellate court could not amend or set aside an illegally lenient sentence on its own motion, when the defendant alone had appealed and the state had not sought review of the sentence. State v. Jackson, 452 So.2d 682 (La. 1984); State v. Napoli, 437 So.2d 868 (La.1983). We reasoned that an unsought modification of a sentence by an appellate court “either is or appears to be retaliatory in nature,” and may have an unconstitutional “chilling effect” on the exercise of a defendant’s right to appeal, a right that is favored under our law. Jackson, 452 So.2d at 683.
The Williams decision does not sweep broadly enough to overrule Fraser and hold that the state need not appeal the district court’s failure to impose a statutorily mandated fine. The law in Louisiana regarding an appellate court’s imposition of mandatory fines on its own motion continues to be governed by the Fraser court’s interpretation of article 882: the state must seek appellate review of the district court’s failure to impose a statutorily mandated fine. The courts of appeal in these consolidated cases therefore erred in amending the defendants’ sentences to include a fine in the absence of complaint by the state.

State v. Phillips, 02-0866, p. 1-3 (La.11/22/02), 834 So.2d 972, 972-73.

While we recognize and respect the reasoning of the dissent in Williams and Phillips, we agree with the rationale espoused by the majority in Williams and find that under the circumstances of this case, we must recognize the trial court’s illegally lenient sentence and remand to the trial court to impose the statutorily correct sentence under the law and peculiar facts of this case.

We recognize that different panels of this court have chosen not to recognize and correct an illegally lenient sentence because the issue was not raised. Still other panels of this court have recognized and corrected illegal sentences. A recent comment in the Loyola Law Review further discusses appellate decisions | ⅞,interpreting this issue and calls for legislative amendment of the law to provide for greater clarity.

In State v. Bourda, 10-1553 (La.App. 3 Cir. 6/8/11), 70 So.3d 82, writ denied, 11-2122 (La.2/17/12), 82 So.3d 282, a panel of this court noted that the forty year sentence imposed by the trial court was an error patent because it was an illegally lenient sentence. Following the reasoning of Williams, our court vacated the forty-year sentence imposed by the trial court, and, pursuant to La.Code Crim.P. art 882(A), imposed the much more onerous but statutorily mandated sentence of life imprisonment in that case. In Bourda, however, even though the court found the sentence illegal on error patent review, the State had also listed and argued this issue as an assigned error.

In State v. Thibodeaux, 12-300 (La.App. 3 Cir. 10/24/12), 100 So.3d 398, though the State did address the sentencing issue on appeal, it did not specify in its notice of appeal that the sentence was illegally lenient. A panel of our court nevertheless applied Williams and held:

Recently!,] the Supreme Court ruled that R.S. 15:301.1 has retroactive application. State v. Williams, 00-1725 (La.11/28/01), 800 So.2d 790. The Williams court also considered the authority of the appellate courts to amend or order amended an illegally lenient sentence when the state did not object below or complain on appeal of the leniency. Although the procedural facts of Williams can be distinguished from the case at bar, because in the instant matter the state does complain of the sentence on appeal, we find Williams enlightening and applicable to the instant matter.
The Williams opinion called into question the line of. cases represented by State v. Jackson 452 So.2d 682 (La. 1984), and State v. Fraser, 484 So.2d 122 (La.1986), and concluded that a defendant does not have a constitutional or statutory right to an illegal sentence. In this regard, l^the Supreme Court concluded that when an illegal sentence is corrected, even though the corrected sentence is more onerous, there is no violation of the defendant’s constitutional rights.
In analyzing R.S.15:301.1 the Williams court found that the provisions of paragraphs A and C were self-activating, but paragraph B requires the court or the state to move to correct the sentence. In this regard, the Supreme Court noted that paragraph B addresses sentencing restrictions other than parole, probation or suspension of sentence. Paragraph B is applicable in the instant case because the sentencing problem of which the state complains is nonconformity with statutory provisions. As we interpret Williams, the state is exempt from the need to file either a contemporaneous objection pursuant to LSA-C.Cr.P. art. 841 or a motion to reconsider sentence pursuant to LSA-C.Cr.P. art. 881.1 because of the legislative enactment of R.S. 15:301.1(B). State v. Williams, supra at p. 11, fn. 8, 800 So.2d at 798. While the Supreme Court does not spe--cifically refer to LSA-C.Cr.P. art. 881.2 in its analysis, we find that article 881.2 must be read in conjunction with article 881.1, which is specifically mentioned. Accordingly, we consider the matter properly before us, and we will review the state’s appeal.

Thibodeaux, 100 So.3d at 402-3 (quoting State v. Jefferson, 01-1139 (La.App. 5 Cir. 3/13/02), 815 So.2d 120).

We note that had this been a jury trial, the trial court would have been obligated to list the responsive verdicts on the jury sheet. The responsive verdicts to the crime of aggravated rape of a child under thirteen are:

Aggravated rape of a child under the age of thirteen are:

Guilty.
Guilty of attempted aggravated rape. Guilty of forcible rape.
Guilty of attempted forcible rape.
Guilty of simple rape.
Guilty of attempted simple rape.
Guilty of sexual battery.
Guilty of molestation of a juvenile or a person with a physical or mental disability.
Guilty of attempted molestation of a juvenile or a person with a physical or mental disability.
Guilty of indecent behavior with a juvenile.
Guilty of attempted indecent behavior with a juvenile.
Not guilty.

fyLa.Code Crim.P. art. 814(A)(8.1).

The jury would have had to acquit, convict on the crime charged, or pick one of the responsive verdicts. The responsive verdict of molestation of a juvenile to the crime of aggravated rape of a child under thirteen requires the trial «court to sentence Defendant to molestation of a juvenile under thirteen. There is no provision of the law that would have enabled the trial court to simply ignore the jury’s Ap-prendi findings. The trial court, likewise, cannot ignore or change its own Apprendi findings and ignore the mandatory minimum sentence that the legislature has imposed to satisfy its own idea of what the sentence should be absent actual mistake or error not present herein.

We have discovered from a mere inspection of the pleadings and proceedings that the sentence imposed by the trial court is an illegal sentence in accordance with La. Code Crim.P. art. 920(2), and have corrected it pursuant to La,Code Crim.P. art. 882(A) by ordering a remand as provided by La.Code Crim.P. art. 881.4(A).

We have already reviewed the entire record in connection with our appellate review of the conviction. Though not essential to our decision to remand for resen-tencing, that review of the record clearly supports our decision. The trial court admittedly had great and even vast discretion as the trier of fact in returning a proper responsive verdict of molestation of a juvenile in this case. . But not even vast discretion vests the trial court with authority to “take back” an Apprendi finding that the victim in this case was under thirteen when that same judge had already found that the victim’s birth date was May 29, 2000 and the date of the offense was November 24, 2012. Simple math proves that D.V. was twelve at the Intime of the offense. All of the evidence was in accord. Likewise, it was uncontroverted that the mother had left the victim in the control and under the supervision of her fiancé, Defendant herein.

We must not lose sight of the victim’s right to a fair trial. Louisiana Constitution Article I, § 25 has made it clear that “Any person who is a victim of crime shall be treated with fairness, dignity, and respect.” Would it be fair and respectful to this young victim of a horrible crime committed against her when she was twelve years old to tell her that it is acceptable for the trial court to ignore the undisputed fact that she was twelve years of age, and then sentence her assailant to an illegally lenient sentence as though she was over thirteen? We think not. The trial court committed legal error when it attempted to do so. It is clear from the record that that is exactly what he did, as we discussed fully in the facts and procedural history portion of this opinion. It is worth repeating the parting comments of the trial court to Defendant after sentencing:

You can talk to your lawyer. You can get understanding. I don’t feel sorry for you. Do your 15 years and be happy you got 15 years. All right.
Go explain to him, what happened today, and that he just missed a 25-year sentence. And if he keeps talking, I’m going to change my mind. Okay?

Even though we have not reviewed the evidence in connection with our error patent finding, the record is clear that the trial judge knew full well that he was imposing an illegally lenient sentence and chose to do so anyway. Though we need not and, arguably, cannot review the record in determining whether a sentence is illegally lenient, we should not fail to mention the clear and uncontroverted facts that support our decision, especially once we have already undertaken responsibility to review the entire record in connection with | ^Defendant’s appeal of the guilty verdict. We remand this case to the trial court to correct this illegally lenient sentence and accord justice to this young victim in accordance with law and with her constitutional rights pursuant to La.Const. art. I, § 25.

CONCLUSION

In our view, this case involves the imposition by the trial court of an illegal sentence. In La.R.S. 14:81.2(D)(1), the legislature has mandated a minimum sentence of twenty-five years with a maximum sentence of ninety-nine years at hard labor, at least twenty-five years of which must be served without benefit of probation, parole, or suspension of sentence for molestation of a juvenile where, as here, the grand jury indictment alleges and the uncontro-verted facts show that the victim was under the age of thirteen and under the supervision and control of the defendant. The sentence imposed by the trial court in this case was an illegal sentence for this particular crime perpetrated on this particular victim under the facts and circumstances of this case, and we hereby vacate the trial court’s sentence and remand this matter to the trial court for resentencing in conformity with the provisions of La. R.S. 14:81.2(D)(1) and this decision.

DISPOSITION

Defendant’s conviction is affirmed, Defendant’s sentence is vacated and the case is remanded to the trial court for resen-tencing in accordance with La.R.S. 14:81.2(D)(1). The trial court is directed to inform the Defendant of the provisions of La.Code Crim.P. art. 930.8 at the resen-tencing proceeding.

CONVICTION AFFIRMED; SENTENCE VACATED. THIS CASE IS REMANDED TO THE TRIAL COURT FOR SENTENCING CONSISTENT WITH THIS OPINION.

■ AMY, J., concurs in part, dissents in part and assigns reasons.

AMY, J.,

concurring in part and dissenting in part.

1,1 agree with the majority opinion’s proposal to affirm the defendant’s conviction after review of the defendant’s assignments of error.

However, I respectfully dissent from the decision to vacate the defendant’s sentence and remand for re-sentencing under error patent review. Rather, I do not find that the purported sentencing error cited by the majority is “discoverable by a mere inspection of the pleadings and proceedings and without inspection of the evidence.” La.Code Crim.P. art. 920(2). See State v. Oliveaux, 312 So.2d 337 (La.1975) (wherein the supreme court listed a number of examples of the types of pleadings/proceedings reviewable under Article 920(2)). Here, neither the State nor the defendant raised a sentencing error by assignment of error and the alleged error identified by the majority opinion is discoverable after an inquiry into the transcript, the evidence, and the trial court’s evaluation of the facts developed. Such an inquiry, in my opinion, is beyond the type of review anticipated by Article 920(2).

For this reason, I do not join in the majority opinion to the extent it vacates the defendant’s sentence.

      . The victim's initials are used pursuant to La.R.S. 46:1844(W).

      . The State amended the bill on May 21, 2013, to reflect the correct initials for the first victim as D.V. instead of D.C.

      . Louisiana Code of Criminal Procedure Article 814(A)(8.1) lists guilty of molestation of a juvenile as a responsive verdict to aggravated rape of a child under the age of thirteen.

      . Louisiana Code of Criminal Procedure Article 890.1(A)(2) provides, "In cases resulting in trial, the prosecution, the defendant, and the court entered into a post-conviction agreement, which specifies that the sentence shall be served with benefit of parole, probation, or suspension of sentence or specifies a reduced fine or term of confinement.”

      . See La.Code Crim.P. art. 821.

      . Louisiana Code of Criminal Procedure Article 851 states:
      A. The motion for a new trial is based on the supposition that injustice has been done the defendant, and, unless such is shown to have been the case the motion shall be denied, no matter upon what allegations it is grounded.
      B. The court, on motion of the defendant, shall grant a new trial whenever any of the following occur:
      (1) The verdict is contrary to the law and the evidence.
      (2) The court’s ruling on a written motion, or an objection made during the proceedings, shows prejudicial error.
      (3) New and material evidence that, notwithstanding the exercise of reasonable diligence by the defendant, was not discovered before or during the trial, is available, and if the evidence had been introduced at the trial it would probably have changed the verdict or judgment of guilty.
      (4) The defendant has discovered, since the verdict or judgment of guilty, a prejudicial error or defect in the proceedings that, notwithstanding the exercise of reasonable diligence by the defendant, was not discovered before the verdict or judgment.
      (5) The court is of the opinion that the ends of justice would be served by the granting of a new trial, although the defendant may not be entitled to a new trial as a matter of strict legal right.
      (6) The defendant is a victim of human trafficking or trafficking of children for sexual purposes and the acts for which the defendant was convicted were committed by the defendant as a direct result of being a victim of the trafficking activity.

      . The State amended the bill on May 21, 2013, to reflect the correct initials for the first victim as D.V. instead of D.C.

      . See La.Code Crim.P. art. 873.

      . Here, the trial court was likely referring to the sentencing provision of La.R.S. 14:81.2(B)(2), which states:
      (2) Whoever commits the crime of molestation of a juvenile, when the victim is thirteen years of age or older but has not yet attained the age of seventeen, and when the offender has control or supervision over the juvenile, shall be fined not more than ten thousand dollars, or imprisoned, with or without hard labor, for not less than five nor more than twenty years, or both. The defendant shall not be eligible to have his conviction set aside or his prosecution dismissed in accordance with Code of Criminal Procedure Article 893.

      . Louisiana Code of Criminal Procedure Article 881.4(A) provides, “If the appellate court finds that a sentence must be set aside on any ground, the court shall remand for resentence by the trial court. The appellate court may give direction to the trial court concerning the proper sentence to impose.”

      . State v. Celestine, 11-1403 (La.App. 3 Cir. 5/30/12), 91 So.3d 573; State v. Jacobs, 08-1068 (La.App. 3 Cir. 3/4/09), 6 So.3d 315, writ denied, 09-755 (La. 12/18/09), 23 So.3d 931; State v. Dorsey, 10-1021 (La.App. 3 Cir. 3/9/11), 58 So.3d 637; State v. Smith, 10-830 (La.App. 3 Cir. 2/9/11), 58 So.3d 964, writ denied, 11-503 (La.9/30/11), 71 So.3d 279; State v. Wiggins, 10-1071 (La.App. 3 Cir. 3/16/11), 2011 WL 890703 (unpublished opinion). In State v. T.S., 08-1299 (La.App. 3 Cir. 4/1/09), 2009 WL 840222 (unpublished opinion), this court stated that the failure to determine the defendant's ability to pay the vie-tim’s counseling costs pursuant to La.R.S. 14:78.1(E)(1) would be cause to raise a question of an illegally lenient sentence, but because the issue was not raised, that panel of this court would not address it.

      . See State v. Matthew, 07-1326 (La.App. 3 Cir. 5/28/08), 983 So.2d 994, writ denied, 08-1664 (La.4/24/09), 7 So.3d 1193; State v. Kotrla, 08-364 (La.App. 3 Cir. 11/5/08), 996 So.2d 1224; State v. Guidry, 08-1574 (La.App. 3 Cir. 6/3/09), 11 So.3d 728.

      . fDustin C. Alonzo, Comment, A Call to Reform Louisiana Code of Criminal Procedure Article 882: Eliminating the Error Patent Review of Illegally Lenient Fines, 60 Loy. L.Rev. 313 (2014).

      . See State v. Guillory, 10-1231 (La.10/8/10), 45 So;3d 612.


source: Caselaw Access Project

author: GENOVESE, Judge. ■

license: Public Domain

text:
    AVOYELLES PAYDAY LOANS, LLC v. Trista M. GRIFFIN.
    No. 14-653.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 10, 2014.
    Derrick M. Whittington, Whittington Law Firm, Marksville, LA, for Plaintiff/Appellant, Avoyelles Payday Loans, LLC.
    Trista M. Griffin, Bunkie, LA, for Defendant/Appellee, In Proper Person.
    Court composed of JOHN D. SAUNDERS, JIMMIE C. PETERS, and JAMES T. GENOVESE, Judges.
   GENOVESE, Judge. ■

| plaintiff, Avoyelles Payday Loans, LLC (Payday Loans), appeals the trial court’s judgment in favor of Defendant, Trista M. Griffin, dismissing its suit on a promissory note. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

On May 20, 2010, Ms. Griffin executed a promissory note with Payday Loans in the amount of $275.00, payable in one installment of $275.00 on June 7, 2010. Ms. Griffin also issued a check to Payday Loans for $275.00 dated June 7, 2010. However, the check was drafted on a closed account; thus, there were insufficient funds to pay the check. Thereafter, Payday Loans turned the matter over to the Avoyelles Parish District Attorney’s Worthless Check Division. The district attorney’s office contacted Ms. Griffin about the worthless check. Ms. Griffin then made a payment of $386.08 to the district attorney’s office on August 23, 2010. Subsequent thereto, the district attorney’s office mailed $305.54 to Payday Loans, the receipt of which was acknowledged by the signature of Francis Keller, the owner of Payday Loans, on August 31, 2010.

On May 9, 2013, Payday Loans filed a Petition on Promissory Note seeking the amounts allegedly due on the promissory note. Ms. Griffin answered the lawsuit denying Payday Loans’ allegations.

The parties participated in a pretrial conference on September 18, 2013. At the pretrial conference, Mr. Keller advised the trial court that Payday Loans had not received the $305.54 payment from the district attorney’s office until April 2013. Based upon this information, Ms. Griffin agreed to pay Payday Loans an additional $150.00 to settle the matter.

^Before making a payment to Payday Loans, Ms. Griffin contacted the district attorney’s office and questioned why nearly three years had elapsed before it sent the payment to Payday Loans. At that time, Ms. Griffin was given a copy of a letter from the district attorney’s office to Payday Loans forwarding the $305.54 payment to Payday Loans on August'23, 2010. The letter contained the signature of Mr. Keller dated August 31, 2010, acknowledging Payday Loans’ receipt of $305.54. Thereafter, Ms. Griffin moved the trial court to have the matter set for trial on the merits.

Following trial on November 22, 2013, the trial court found in favor of Ms. Griffin and dismissed the claims of Payday Loans. Payday Loans appeals.

ASSIGNMENT OF ERROR

In its sole assignment of error, Payday Loans asserts that the trial court erred in failing to award it damages and attorney fees against Ms. Griffin pursuant to the promissory note.

LAW AND DISCUSSION

Following trial on the merits, the trial court issued an opinion wherein it set forth the facts that were proven at trial and its reasons for ruling, stating as follows:

In every criminal case, the District Attorney represents the State of Louisiana. But, in every case there is a victim of the crime. In a matter involving a check written on a closed account, the victim is the person or entity which received the check. In the matter before the Court, Avoyelles Payday Loans, [LLC,] was the victim. When this matter was turned .over to the District Attorney, the District Attorney, became, for all intents and purposes, the legal representative of the victim. When the District Attorney informed Ms. Griffin that she had to pay the sum of $ .386.08, she paid it. Of the sum[,] $ 80.54 went to the District Attorney as collection fee.
The sum of $ 805.54 went to the Plaintiff which apparently covered the amount of the check ($275.00), the fee charged by the bank ($ 25.00)[,] and an additional amount of $ 5.54 which is either interest or the cost of sending a certified letter. At any rate[,] the Court is of the opinion that Ms. Griffin should be able to rely on the payment that she made to clear up any debt she owed to the Plaintiff. During the trial, Mr. Francis Keller, President of Avoyelles Payday Loans, [LLC] was |sasked by his attorney what the balance was that was owed by Ms. Griffin after the payment of $ 305.54. He was unable to come up with a balance. If there was a balance owed, why wait nearly 3 years to attempt collection? Ms. Griffin received the sum of $ 225.00 on May 20, 2010[,] for which she paid the sum of $ 386.08 in August of 2010. The Court is sure that Ms. Griffin would have paid whatever sum requested by the District Attorney for restitution to the Plaintiff. The Court finds in favor of the Defendant ] and against the Plaintiff at Plaintiffs cost.

Payday Loans argues in its brief to this court that “[t]he [district [attorney's involvement in this case was only to resolve the issue of the worthless check, not collecting the balance on an open account.” Notably, however, the check that was returned for insufficient funds was for payment of the loan in full; it was not an installment payment. There were no remaining payments to be made by Ms. Griffin to satisfy her repayment obligations. Undisputedly, the district attorney was successful in collecting the amount of the check, and payment of $305.54 was made to Payday Loans in August 2010.

Ms. Griffin testified at trial that her willingness to settle the matter for the amount agreed upon at pretrial conference was based on the representation made by Mr. Keller that Payday Loans had not received payment until April 2013. At trial, the trial judge questioned Mr. Keller, specifically addressing the discrepancy between the allegation in Payday Loans’ petition that a payment was made by Ms. Griffin on August 23, 2010, and Mr. Keller’s representation at the pretrial conference when, according to the trial court, he stated “in no uncertain terms” that the payment was not received until April 2013. Candidly, Mr. Keller testified that he did not recall when he received the payment, nor was he able to testify as to what the balance would have been at that time. Thereafter, when Mr. Keller was presented with correspondence containing his signature acknowledging receipt of payment from the district attorney dated August 31, 2010, he conceded that fact.

LDespite not being represented by counsel at trial, Ms. Griffin testified as to what transpired. Ms. Griffin testified that she issued two checks (in the amounts of $305.84 and $80.54) to the district attorney’s office in 2010 and “was told that once [she] paid this everything was clear.” When she later learned that Payday Loans contended she still owed them money, she returned to the district attorney’s office to see “what was actually going on.” Ms. Griffin testified that at her request, on April 24, 2013, the district attorney sent her a letter documenting the amounts she had paid in 2010. She explained that she then faxed a copy of the letter to Mr. Keller. According to her testimony, Ms. Griffin met with the district attorney’s office on two occasions and was advised that she did not owe Payday Loans anything more.

Based upon the evidence, it was clearly established that Ms. Griffin issued a worthless check for $275.00 for which she remitted payment totaling $386.08 on August 23, 2010. The district attorney then forwarded $305.54 to Payday Loans, which was acknowledged by Mr. Keller on August 31, 2010. Ms. Griffin was never told that she still owed money to Payday Loans, and she was not contacted by them again for years. Ms. Griffin later agreed, at the pretrial conference, to pay an additional $150.00 to Payday Loans based upon Mr. Keller’s erroneous representation that Payday Loans was not paid until 2013. The opinion of the trial court accurately sets forth the facts and evidence, and we find no manifest error in the trial court’s judgment in favor of Ms. Griffin.

|fiAs inferred by the trial court, we likewise find that when Payday Loans opted to use the “strong arm” of the district attorney to assist it in collecting the amount it claimed was owed by Ms. Griffin, and then accepted the amount collected by the district attorney’s office from Ms. Griffin, Payday Loans’ claim against Ms. Griffin was fully satisfied and extinguished. To rule otherwise would allow double-dipping and an excessive collection.

DECREE

For the foregoing reasons, the judgment of the trial court in favor of Trista M. Griffin, dismissing the claims of Avoyelles Payday Loans, LLC, is affirmed. Costs of this appeal are assessed to Avoyelles Payday Loans, LLC.

AFFIRMED.

      . The district attorney’s office retained $80.54 for a collection fee.

      . Conceivably, it was the date of this fax that Mr. Keller was referencing, erroneously, at the pretrial conference as the date payment was received.

      . Appellate courts are to apply the manifest error standard of review to the trial court's factual determinations. See Granger v. Calca-sieu Parish Police Jury, 14-111 (La.App. 3 Cir. 6/18/14), 140 So.3d 1283.


author: PETERS, J.

text:
    CITY OF LAFAYETTE v. Kevin Reco TYLER.
    No. 14-663.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 10, 2014.

      Danny J. Louviere, Opelousas, LA, for Defendant/Appellant, Zerangue’s Bail Bonds, Inc.
    Gary J. Haynes, City Prosecutor, Lafayette, LA, for Plaintiff/Appellee, City of Lafayette.
    Court composed of JOHN D. SAUNDERS, JIMMIE C. PETERS, and JAMES T. GENOVESE, Judges.
   PETERS, J.

| iZerangue’s Bail Bonds, Inc., appeals a trial court judgment wherein the trial court refused to set aside a judgment of bond forfeiture rendered against it because of the failure of Kevin Reco Tyler to appear at his arraignment. For the following reasons, we affirm the trial court judgment in all respects.

DISCUSSION OF THE RECORD

Kevin Reco Tyler first failed to appear in the Lafayette City Court for his September 17, 2012 arraignment on multiple traffic-related offenses. Based on his failure to appear, the trial court issued a warrant for his arrest. Thereafter, Tyler was taken into custody on the warrant on November 1, 2013, and posted a $750.00 appearance bond to secure his release pending trial on the underlying offenses. Zerangue’s Bail Bonds, Inc. (Zerangue) issued the appearance bond as agent for Financial Casualty & Surety, Inc. (Financial Casualty).

The trial court reset arraignment on the charges for December 16, 2013, and Tyler failed to appear for that hearing. On December 27, 2013, the trial court issued a bench warrant for his arrest and a judgment of bond forfeiture against Financial Security.

On June 13, 2014, Zerangue filed a motion seeking to set aside the bond forfeiture and to be discharged and released as surety based on the authority of La.Code Crim.P. art. 345. As support for its motion, Zerangue attached a copy of a St. Landry Parish Jail Sheet, which purports to reflect that Tyler had been booked into that jail at 7:49 p.m. on February 25, 2014, and released at 11:38 a.m. the next day.

| ¡.Following an April 14, 2013 hearing, the trial court rejected Zerangue’s motion. After the trial court executed an order to that effect on May 5, 2014, Zerangue perfected this appeal wherein it asserts one assignment of error:

The trial court erred when it denied Appellant’s motion for discharge and release of surety, set aside judgment of bond forfeiture and, [sic] relieve Appellant from liability as regards power of attorney number FCS5-121194, naming Kevin Reco Tyler as principal.

OPINION

The facts are not at issue in this appeal, and the trial court denied Ze-rangue relief based on its interpretation of La.Code Crim.P. art. 345. That being the case, the issue on appeal is an issue of law, and we review questions of law de novo in order to determine whether the trial court’s decision was legally correct. Johnson v. Johnson, 13-719 (La.App. 3 Cir. 12/11/13), 128 So.3d 627, writ denied, 14-76 (La.3/14/14), 135 So.3d 605.

The general rule is that bond forfeitures are not favoredf.] State v. Bailey, 567 So.2d 721, 724 (La.App. 2 Cir.1990). A bond forfeiture is basically a civil proceeding; however, it is subject to the special rules as set forth in the Code of Criminal Procedure. State v. Likens, 577 So.2d 285, 289 (La.App. 3 Cir.1991), writ denied, 580 So.2d 386 (La.1991). In order to obtain a judgment of bond forfeiture against a surety, the State must strictly comply with the terms of the statutory provisions regulating bond forfeitures. Bankers Insurance Company v. State, 37,080, p. 4 (La.App. 2 Cir. 4/11/03), 843 So.2d 641, 644, writ denied, 2003-1240 (La.6/27/03), 847 So.2d 1268.

State v. Johnson, 13-133, pp. 3-4 (La.App. 1 Cir. 11/1/13), 136 So.3d 15,17-18.

Pursuant to the authority provided in La.Code Crim.P. art. 349.8(A)(1), Ze-rangue had 180 days from the date of mailing of the notice of the judgment of forfeiture in which to satisfy the judgment by surrendering the defendant, and La. Code Crim.P. art. 345 sets forth the procedure for how a surrender is to be effected as well as the consequences thereof. The situation where a defendant |sbecomes incarcerated in another parish or foreign jurisdiction is provided for in La.Code Crim.P. art. 345(D) which reads as follows:

If during the period allowed for the surrender of the defendant, the defendant is found to be incarcerated in another parish of the state of Louisiana or a foreign jurisdiction, the' judgment of bond forfeiture is deemed satisfied if all of the following conditions are met:
(1) The defendant or his sureties file a motion within the period allowed for the surrender of the defendant. The motion shall be heard summarily.
(2) The sureties of the defendant provide the court adequate proof of incarceration of the defendant, or the officer originally charged with his detention verifies his incarceration. A letter of incarceration issued pursuant to this Article verifying that the defendant was incarcerated within the period allowed for the surrender of the defendant at the time the defendant or the surety files the motion, shall be deemed adequate proof of the incarceration of the defendant.
(3) The defendant’s sureties pay the officer originally charged with the defendant’s detention, the reasonable cost of returning the defendant to the officer originally charged with the defendant’s detention prior to the defendant’s return.

(Emphasis added).

The consequences of compliance with La.Code Crim.P. art. 345(D) are set forth in La.Code Crim.P. art. 345(F), which reads as follows:

When the defendant has been surrendered in conformity with this Article or a letter of verification of incarceration has been issued to the surety as provided for in this Article, the court shall, upon presentation of the certificate of surrender or the letter of verification of incarceration, order that the surety be exonerated from liability on his bail undertaking and shall order any judgment of forfeiture set aside.

In this case, sometime within the 180 day surrender window, Zerangue learned that the defendant had been incarcerated for one day in the St. Landry Parish jail, and informed the trial court of his incarceration "within that 180 day surrender window, but twenty-six days after his release. Zerangue argues to this court, as it did to the trial court, that this notification satisfies the first two ^requirements of La.Code Crim.P. art. 345(D); and that it need not comply with the third requirement because the defendant was no longer in the custody of the St. Landry Parish facility. The trial court did not accept this interpretation of La.Code Crim.P. art. 345(D), and neither do we.

We agree with the analysis of the compliance requirements of La.Code Crim.P. art. 345(D) as set forth in State v. International Fidelity Insurance Co., 32,837, 32,-838, pp. 2-3 (La.App. 2 Cir. 3/1/00), 756 So.2d 565, 566, wherein the court stated the following:

At all pertinent times, La.C.Cr.P. art. 345(D) provided that, if within six months after a bond forfeiture judgment has been entered, a defendant is found incarcerated, the judgment of bond forfeiture is deemed satisfied if the surety meets three conditions. First, the filing of summary proceedings; second, the submission of proof of the defendant’s incarceration; and third, that “defendant’s sureties pay the officer originally charged with the defendant’s detention, the reasonable cost of returning the defendant to the officer originally charged with the defendant’s detention.” This statute was amended in 1999 to add to the third requirement payment “prior to the defendant’s return(Emphasis added). This 1999 amendment was remedial and for clarification of the obvious.
A plain reading of the statute shows that a surety must meet all three conditions before the surety’s obligation is satisfied and released. The record shows that the surety did not tender payment of the cost of transportation until approximately three weeks after [the defendant] had been released. Thus, at the time the fax was sent and the motion filed, the surety had not satisfied La.C.Cr.P. art. 345(D). Thereafter, when the cost was tendered, the second condition of article 345(D), that defendant be incarcerated, was not met. We find that the trial court erred in releasing the surety from its bond obligations. We therefore reverse the trial court’s judgment and reinstate both bond forfeiture judgments against the surety.

The obvious purpose of compliance with La.Code Crim.P. art. 345(D) by the surety is to place the officer who was originally charged with the defendant’s detention in a position to take immediate action to assure the defendant’s return from the parish of his incarceration. That never happened in this case as the defendant had been released from the St. Landry Parish jail for twenty-six days |5before Zerangue notified the trial court of his incarceration, making it impossible for the officer in Lafayette Parish charged with his original detention to regain custody.

Based on the record before us, we find that the trial court correctly denied Ze-rangue’s motion as Zerangue clearly failed to satisfy the requirements of La.Code Crim.P. art. 345(D). We find no merit in Zerangue’s sole assignment of error.

DISPOSITION

For the foregoing reasons, we affirm the trial court’s judgment rejecting the request of Zerangue’s Bail Bonds, Inc. to set aside the bond forfeiture and to be released from further liability under the surety bond. We assess all costs of this appeal to Zerangue’s Bail Bonds, Inc.

AFFIRMED.

      . The particulars of his release are not made clear from the Jail Sheet. At the top of the form, the line entitled "Reason for Release" is followed by the notation "BO[J” which we interpret to mean that he made bail. However, at the bottom of the form under the notation "Release Notes[,]” is the notation "TRANS TO EUNICE CITY”.


author: COOKS, J.

text:
    STATE in the Interest of K.K.
    No. 14-479.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 17, 2014.
    Jane Hogan, Lafayette, LA, for Appellant, K.K.
    Michelle M. Breaux, Assistant District Attorney, Lafayette, LA, for Appellee, State of Louisiana.
    Court composed of SYLVIA R. COOKS, MARC T. AMY, and JOHN E. CONERY, Judges.
   COOKS, J.

I,FACTS AND PROCEDURAL HISTORY

On December 6, 2013, K.K. was charged by petition with one count of illegal possession of a handgun by a juvenile, a violation of La.R.S. 14:95.8, possession with intent to distribute marijuana, a violation of La.R.S. 40:966, and illegal possession of a stolen firearm, a violation of La.R.S. 14:69.1. K.K. entered a denial to the charge on December 18, 2013. On January 6, 2014, he filed a Motion to Quash Count One of the petition on the grounds of double jeopardy. The trial court denied the motion on February 6, 2014. K.K. filed a writ application in this court seeking review of the trial court’s ruling. On February 19, 2014, in State in the Interest ofKK, 14-202 (La.App. 3 Cir. 2/19/14) (unpublished opinion), this court denied KK.’s writ application finding no error in the trial court’s ruling. Judge Genovese dissented. K.K. filed a writ application with the Louisiana Supreme Court, and on March 12, 2014, the court denied the application, with three justices voting to grant the application. State in the Interest of K.K., 14-424 (La.3/12/14), 134 So.3d 1183. A request for reconsideration was not considered by the supreme court. State in the Interest of K.K., 14-424 (La.3/21/14), 135 So.3d 626.

Thereafter, on March 24, 2014, K.K. entered an admission to the petition and was sentenced to a six month suspended sentence with six months of supervised probation. He is now before this court alleging two assignments of error. We find two errors patent requiring reversal of the disposition in this case.

ANALYSIS

Although the Louisiana Children’s Code is silent as to whether a juvenile delinquency proceeding is entitled to an error patent review, this court has found |2that such a review is mandated by La.Ch.Code art. 104 and La.Code Crim.P. art. 920. See State in the Interest of J.C.G., 97-1044 (La.App. 3 Cir. 2/4/98), 706 So.2d 1081.

The petition charged K.K. with illegal possession of a handgun by a juvenile, a violation of La.R.S. 14:95.8, possession with the intent to distribute marijuana, a violation of La.R.S. 40:966, and illegal possession of a stolen firearm, a violation of La.R.S. 14:69.1. K.K. entered an admission “to Docket Number 2013-1110.” "it cannot be determined from the record which offense or offenses he entered the admission to considering there were three offenses contained in the petition. The written “Admission to Petition” form signed in this case does not refer to any particular offense or offenses, nor does it recite any factual basis for the offenses charged. When K.K. entered his plea in open court there was no mention of the factual basis for any of the three offenses charged and no mention of what offense(s) to which he was entering an admission. K.K.’s attorney simply said “At this time, [K.K.] wishes to enter an admission to Docket Number 2013-1110.” She then set forth the agreed upon sentence. A single disposition was imposed.

This court faced a similar issue in State in the Interest of N.W.L., 08-347, pp. 1-2 (La.App. 3 Cir. 8/27/08), 994 So.2d 607, 608:

The Children’s Code articles and jurisprudence require a trial court to find that a juvenile violated a specific statute or ordinance; a general finding of delinquency is insufficient. Louisiana Children’s Code Article 804(3) defines delinquent act as “an act committed by a child of ten years of age or older which if committed by an adult is designated an offense under the statutes or ordinances of this state.” Louisiana Children’s Code Article 883 provides: “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.” Additionally, “[f]or an adjudication of delinquency ... it must be proved that the juvenile violated a specific statute or ordinance, and every element of the crime must be proved.” State v. \3Melanson, 259 So.2d 609, 613 (La.App. 4 Cir.1972). See also, State ex rel. D.P.B., 02-1742 (La.5/20/03), 846 So.2d 753.

In N.W.L., on error patent review, this court noted it could not ascertain with reasonable certainty the offense or offenses which the trial court determined the juvenile had committed. We reversed the adjudication of delinquency, vacated the disposition, and remanded the matter to the trial court' for further proceedings. While N.W.L. is distinguishable in that an adjudication hearing was held rather than an admission to the petition in this case, the facts of this case more strongly require a reversal.

The record indicates the trial court failed to advise K.K. of his rights as required by La.Ch.Code art. 855 when he appeared to answer the allegations contained in the petition.

Louisiana Children’s Code Article 855 provides in pertinent part:

A. When the child appears to answer the petition, the court shall first determine that the child is capable of understanding statements about his rights under this Code.
B. If the child is capable, the court shall then advise the child of the following items in terms understandable to the child:
(1) The nature of this delinquency proceeding.
(2) The nature of the allegations of the petition.
(8) His right to an adjudication hearing.
|4(4) His right to be represented by an attorney, his right to have counsel appointed as provided in Article 809, and his right in certain circumstances authorized by Article 810 to waive counsel.
(5) His privilege against self-incrimination.
(6) The range of responses authorized under Article 856.
(7) The possible consequences of his ■ admission that the allegations are true, including the maximum and minimal dispositions which the court may impose pursuant to Articles 897 through 900.

Louisiana Children’s Code Article 856 provides:

A. After the child has been advised pursuant to Article 855, the court shall inquire how the child responds. The child may:
(1) Deny the allegations of the petition, in which case the court shall set the matter for an adjudication hearing.
(2) Deny the allegations of the petition and contest the request for adjudication due to insanity as defined in this Title, in which case the court shall not adjudicate the child without a hearing, at which time the child has the burden of establishing this defense.
(3) Admit the allegations of the petition, in which case the court shall further inquire to determine whether there is a factual basis for adjudication. If so, the court may then adjudicate the child delinquent.
(4) With the court’s permission, enter a response of nolo contendere. If, in its discretion, the court accepts such response, the court shall further inquire to determine whether there is a factual basis for adjudication, and it may then adjudicate the child delinquent.
B. A child shall plead when called upon to answer. If he stands mute, refuses to plead, or pleads evasively, a denial of the petition shall be entered of record.

The rights required by La.Ch.Code art. 855 are contained on an “Admission to the Petition” form which is signed by K.K., his attorney, the trial judge, and K.K.’s mother. However, our jurisprudence indicates this is insufficient to satisfy the requirements of La.Ch.Code art. 855. In State v. Dejean, 94-459, p. 5 (La.App. 5 Cir. 11/28/95), 694 So.2d 284, 287, writ denied, 96-547 (La.5/17/96), 673 So.2d 608 (citing State v. Delanoix, 637 So.2d 515 (La.App. 1 Cir.1993)), the fifth | ¡^circuit found a guilty plea form “alone is not sufficient to show a knowing and voluntary waiver of defendant’s constitutional rights.” In De-jean, the record was void of any minute entry or transcript showing a colloquy between the defendant and the trial judge. Id. Specifically noting that the defendant was sixteen-years old, the fifth circuit found the defendant’s guilty plea was invalid “as there [was] not sufficient proof as to his knowing and voluntary waiver of his constitutional rights prior to the entry of his guilty plea.” Id The record in this case shows there was no colloquy between K.K. and the trial judge regarding the offenses charged or the factual basis for each charge or anything except sentencing.

Accordingly, we strike K.K.’s admission to the petition and remand the case to the trial court for further proceedings consistent with this opinion, the law, and prior jurisprudence. See State v. Jefferson, 02-1038 (La.1/10/03), 838 So.2d 724. If K.K. decides to again enter an admission, the trial court is instructed to specify to which offense or offenses K.K. is admitting and to properly comply with La.Ch.Code arts. 855 and 856.

REVERSED AND REMANDED.

      . Initials are used to protect the identity of this minor pursuant to Uniform Rules— Courts of Appeal, Rule 5-2.

      . La.Ch.Code art. 855 violations have been recognized on error patent review in the following cases., State in the Interest of T.H., 14-179 (La.App. 3 Cir. 6/4/14), 140 So.3d 911, writ denied, 14-1462 (La.7/18/14), 147 So.3d 681; State in the Interest of L.D., 14-01 (La.App. 3 Cir. 5/7/14), 139 So.3d 679; State in the Interest of CM., 13-128 (La.App. 5 Cir. 10/30/13), 128 So.3d 1118, writ denied, 13-2796 (La.5/30/14), 140 So.3d 1172; State v. Erven, 36,332 (La.App. 2 Cir. 10/23/02), 830 So.2d 368; State ex rel. K.G., 34,535 (La.App. 2 Cir. 1/24/01), 778 So.2d 716.

      . The comments to this article state, "a. Paragraph A is new. Former C.J.P. Article 54 required the court to advise an accused child only 'insofar as practicable.’ This required instruction serves two purposes. First, it lays the necessary predicate for the receipt of an accused child’s admission of guilt, that is, that the child responds voluntarily and with full knowledge of the consequences of his ‘plea,’ including knowledge of his trial rights. Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). Second, it reinforces this Code’s recognition that a child must be mentally capable of proceeding to trial. See Art. 804(7).”

      . We note additionally that the adjudication (or admission to the petition in this case) was not held within ninety days of the appearance to answer the petition as required by La.Code Crim.P. art. 877; however, good cause was shown. At the appearance to answer the petition on December 18, 2013, the adjudication hearing was timely set for February 20, 2014, but was continued at the request of the defense to March 24, 2014. Under similar circumstances, this court found good cause for the delay in State in the Interest of S.D., 13-1028 (La.App. 3 Cir. 2/12/14), 2014 WL 576265 (unpublished opinion). Because we have set aside the admission to the petition and the disposition, we will not discuss any potential errors regarding the disposition, credit for time served, or the failure to advise of the time limitation for filing an application for post-conviction relief. We also note the record contains the probation order of another juvenile, but it is not necessary to order the correct one due to our ruling. We also pretermit considering K.K.’s double jeopardy argument at this time.


author: KEATY, Judge.

text:
    Elizabeth FALTERMAN v. Amy SCHUNEMEYER, DPM, et al.
    No. 14-216.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 17, 2014.
    Patrick J. Briney, Hallie P. Coreil, Bri-ney Foret Corry, LLP, Lafayette, LA, for Defendants/Appellants, Podiatry Insurance Company of America, Amy Sehunem-eyer, DPM.
    Nadia de la Houssaye, Jones Walker LLP, Lafayette, LA, for Defendant/Appellant, Louisiana Patient’s Compensation Fund.
    Scott H. Frugé, deGravelles, Palmintier, Holthaus & Frugé, L.L.P., Baton Rouge, LA, for Plaintiff/Appellee, Elizabeth Fal-terman.
    Court composed of ELIZABETH A. PICKETT, JAMES T. GENOVESE, and PHYLLIS M. KEATY, Judges.
   KEATY, Judge.

l,In this medical malpractice case, Elizabeth Falterman (Plaintiff), filed suit against Dr. Amy Schunemeyer (Defendant), a podiatrist, alleging that the revi-sional bunionectomy that Defendant performed on her right foot in December 2002 was improperly performed and caused damages to her right foot and to other parts of her body, necessitating corrective surgery and leaving her with permanent physical disability and the need for further corrective surgery.

After a trial, the jury determined that Defendant breached the applicable standard of care and that such breach caused or contributed to the injury to Plaintiff. The jury awarded Plaintiff $15,000 in past medical expenses. Thereafter, Plaintiff filed a motion for additur and/or new trial regarding the alleged inadequacy of the damages award. Defendant also filed a motion for new trial on the grounds that Plaintiffs counsel had attacked Dr. Schu-nemeyer’s credibility in his rebuttal closing argument, and, because its request to present a surrebuttal closing argument was denied, Dr. Sehunemeyer was “unfairly deprived of the opportunity to defend her credibility against the attack before the jury.”

Following a hearing, the trial court rendered judgment denying Defendant’s motion for new trial, granting Plaintiffs motion for additur, maintaining the jury’s verdict, and awarding Plaintiff an additional $100,000 for past and future pain and suffering, $75,000 for past and future mental pain and suffering, and $75,000 for past and future loss of enjoyment of life. The judgment cast Defendant with liability for $100,000 of Plaintiffs damages and the Louisiana Patient’s ^Compensation Fund (the PCF) was cast with liability for the remaining $165,000 of Plaintiffs damages. Defendant suspensively appealed and is now before this court asserting that the trial court erred: 1) in granting Plaintiffs motion for additur absent Defendant’s consent; 2) in usurping the jury’s role of ultimate fact finder and judge of credibility; 3) in failing to award the lowest reasonable amount upon granting Plaintiffs motion for additur; and 4) in choosing which portions of the verdict to accept (liability and special damages) and which to reject (general damages), yet denying Defendant’s motion for new trial. For the following reasons, we reverse and remand.

DISCUSSION

Additur

Louisiana Code of Civil Procedure Article 1814, entitled “Remittitur or additur as alternative to new trial; reformation of verdict,” provides as follows:

If the trial court is of the opinion that the verdict is so excessive or inadequate that a new trial should be granted for that reason only, it may indicate to the party or his attorney within what time he may enter a remittitur or additur. This remittitur or additur is to be entered only with the consent of the plaintiff or the defendant as the case may be, as an alternative to a new trial, and is to be entered only if the issue of quantum is clearly and fairly separable from other issues in the case. If a remittitur or additur is entered, then the court shall reform the jury verdict or judgment in accordance therewith.

Comment (b) to Article 1814 states that “[i]t serves judicial efficiency by allowing the parties to avoid a possibly unnecessary new trial and then to seek appellate review of the correctness of the judgment reformed by additur or remittitur.”

[T]he jurisprudence is well settled that the Louisiana statutory scheme requires the consent of the party adversely affected by. an additur or remittitur. That party is offered an opportunity, when asked by the trial judge, to agree to a change in judgment, thereby avoiding the |sexpense and delay of a new trial. The order of an additur or remittitur is therefore contingent; if the party does not agree to the change, he elects to submit to a new trial.

Accardo v. Cenac, 97-2320, p. 7 (La.App. 1 Cir. 11/6/98), 722 So.2d 302, 306.

Defendant asserted on appeal that addi-tur was improperly granted because she did not consent to it. In her original appellee brief, Plaintiff cited a portion of the trial transcript where she noted that it was Defendant’s counsel who “not only consented but actually requested the addi-tur” at the hearing on post-trial motions. In a reply brief, Defendant claimed that the statement upon which Plaintiff relied was “erroneously attributed to Defense counsel.” Upon recognition of the error, Defendant filed a motion to correct the appellate record. The’motion was granted on April 28, 2014, and a supplemental record was filed in this court containing a corrected copy of the December 21, 2012 transcript to indicate that the request for additur was made by counsel for Plaintiff. Thereafter, Plaintiff filed a supplemental appellee brief wherein she consented to the correction of the appellate record. Nevertheless, citing Accardo, Plaintiff contends that this court could find that Defendant did not need to officially accept or reject the additur and that the judgment reformed by the additur is nonetheless properly before this court on appeal.

In Accardo, the appellate court noted “that the judgment submitted by the defendant for the signature of the trial court contained the amount of additur, indicating that the defendant was willing to accept the additur rather than face the alternative of having the matter remanded to the trial court for the granting of a new trial.” Id. at 307. Thus, it found that “the trial court did not act without authority in granting an additur, with the defendant’s consent, and in denying plaintiffs’ alternative request for a new trial.” Id.

| ¿Accardo is clearly distinguishable from the instant matter. Here, Defendant filed a motion for new trial after the original judgment was rendered on the jury verdict. In addition, Defendant filed an opposition to Plaintiffs motion for additur and/or new trial, and it argued against the granting of those motions at the December 21, 2012 hearing on post-trial motions. At the conclusion of that hearing, the trial court denied Defendant’s motion for new trial and took Plaintiffs motion for additur and/or new trial under advisement. Thereafter, Plaintiff submitted a judgment to the trial court reflecting that Plaintiffs motion for additur was being granted. Counsel for Defendant’s signature appeared on that judgment indicating that it had been approved as to form. Because defense counsel consistently maintained his client’s opposition to Plaintiffs motion for additur, we conclude that the trial court violated the dictates of La.Code Civ.P. art. 1814 by granting additur in favor of Plaintiff without giving Defendant the option of accepting the reformed judgment or instead choosing to submit to “the expense and delay of a new trial.” Id. at 306. Accordingly, this matter is remanded to the trial court for Defendant to be given an opportunity to choose a new trial rather than to accept the trial court’s proposed additur. As a result, the remainder of Defendant’s assignments of error are moot.

DECREE

For the foregoing reasons, the judgment of the trial court is reversed, and this matter is remanded to the trial court for Dr. Amy Schunemeyer to be given an opportunity to choose a new trial rather than to accept the trial court’s proposed addi-tur. All costs of this appeal are assessed to Elizabeth Falterman.

REVERSED AND REMANDED.

      . Although Plaintiff got married and changed her last name to Gondron before this matter went to trial, she will be referred to as "Ms. Falterman” in this opinion.

      . The petition also named Dr. Schunemeyer’s medical malpractice insurer, Podiatry Insurance Company of America (PICA), as a defendant. Thus, sometimes when we say "Defendant” we are referring to Dr. Sehunemeyer and PICA.

      . Although the PCF also filed a motion to suspensively appeal from the final judgment rendered in this matter, it did not file an appellate brief in this court.