author: THERIOT, J.

text:
    Frank RABORN v. Jeffery R. ALBEA, M.D. and Shawn G. Dunn, M.D., The Neuromedical Center (a Professional Medical Corporation), EBI, LP and Synthes USA Sales, Limited Liability Company.
    No. 2013 CA 0633.
    Court of Appeal of Louisiana, First Circuit.
    April 16, 2014.
    Rehearing Denied May 15, 2014.

      Stephen M. Irving, Martin K. Maley, Sr., Adrien G. Busekist, Baton Rouge, LA, David H. Alfortish, Kenner, LA, for Plaintiff/Appellant Frank Raborn.
    Matthew W. Bailey, Baton Rouge, LA, Andrew E. Tauber, Washington, DC, for Defendani/Appellee Medtronic, Inc.
    Before KUHN, HIGGINBOTHAM, and THERIOT, JJ.
   THERIOT, J.

|2In this products liability case, the plaintiff appeals the dismissal of his products liability claim against the manufacturer of a medical device on the basis of prescription. We affirm.

FACTS AND PROCEDURAL HISTORY

Plaintiff, Frank Raborn, was born with a spinal deformity called spondylolisthesis which eventually resulted in an impingement of his spinal cord. On June 6, 2006, Mr. Raborn underwent a one-level fusion and laminectomy. Dr. Jeffrey R. Albea, the surgeon who performed this surgery, used a medical appliance consisting of rods and collars to support the fusion. Dr. Albea moved his practice out of state shortly after Mr. Raborn’s surgery, so Mr. Raborn visited a Dr. Waguespaek for his post-operative care. Dr. Waguespaek referred Mr. Raborn to a neurologist, Dr. Shawn G. Dunn, in October 2006. In December 2006, x-rays revealed that a pedi-cle screw on the medical appliance placed by Dr. Albea during the June 2006 surgery was broken. Mr. Raborn alleges that Dr. Albea installed the medical appliance supporting the fusion incorrectly, leading to the breaking of the screw and failure of the appliance. Dr. Dunn performed a dis-eogram, which Mr. Raborn alleges caused a spinal fluid leak, resulting in headaches and other symptoms. To treat the spinal fluid leak, Dr. Dunn performed two blood patches at the location of the leak in March of 2007, after which Mr. Raborn began to experience more problems. An MRI revealed a subdural hematoma in his spine, allegedly caused by the second blood patch. Mr. Raborn began to recover from the hematoma in May of 2007.

Once Mr. Raborn recovered from the subdural hematoma, he sought treatment with a different neurosurgeon in Houston, Texas, Dr. Jerry Bob Blacklock. Dr. Blacklock performed an extensive corrective surgery on Mr. |sRaborn’s back on June 12, 2007, in which the broken hardware was removed and replaced with oversized screws, his congenital deformity was repaired, and his back was successfully refused. The fusion performed in this 2007 surgery was a two-level fusion, performed from both the anterior and posterior sides. In performing the fusion, Dr. Blacklock sought and received Mr. Raborn’s permission to use a medical device called “InFUSE,” manufactured by Medtronic, Inc., to promote bone development at the fusion site. Dr. Blacklock’s use of the Medtronic product in Mr. Raborn’s surgery was considered off-label because the product was used in a posterior fusion and in more than one level in an anterior fusion. Mr. Ra-born continued to have back problems after his second surgery.

Mr. Raborn filed a request for a medical review panel in accordance with La. R.S. 40:1299.47, alleging malpractice by Drs. Dunn and Albea and The NeuroMedical Center Surgical Hospital. The Medical Review Panel issued a decision on July 21, 2009, finding that there was no deviation from the standard of care in the treatment Mr. Raborn received from Drs. Dunn and Albea and The NeuroMedical Center Surgical Hospital.

Mr. Raborn filed a medical malpractice and products liability suit on October 19, 2009 for damages arising from the June 6, 2006 back surgery performed by Dr. Albea and the subsequent procedures performed by Dr. Dunn. On May 18, 2012, Mr. Ra-born filed a Third Superseding Petition in which he asserted a products liability claim against Medtronic arising from the use of the InFUSE product in his June 12, 2007 surgery. Mr. Raborn |4alleged that Med-tronic “covered up and did not disclose that there have been many incidences of serious complications including occurrences of ectopic bone growth ..., inflammatory reactions, urinary problems, etc.— particularly when the product is used in an off-label fashion.” Mr. Raborn further alleged that following the off-label use of the Medtronic product in his surgery, he developed ectopic bone growth in his spine, demyelinating disease, additional bowel and bladder complications, inflammatory response, neural scarring, and further complications of Arachnoiditis. As a result of these complications, he alleged that he is disabled, has to use assistive devices for mobility, has developed a spinal fluid pressure problem, has developed mental fogginess, has to catheterize three to four times per day to treat urinary retention, and is in constant pain.

Medtronic filed a peremptory exception raising the objections of no cause of action and prescription on July 16, 2012. Med-tronic pointed to the express warnings contained in the FDA-approved InFUSE labeling that warned of the sort of adverse events Mr. Raborn experienced. Med-tronic introduced evidence in support of its motion, including the InFUSE package insert. This insert states, in part:

INDICATIONS:

The InFUSE Bone Graft/LT-CAGE™ Lumbar Tapered Fusion Device is indicated for spinal fusion procedures in skeletally mature patients with degenerative disc disease (DDD) at one level from L4-S1. DDD is defined as disco-genic back pain with degeneration of the disc confirmed by patient history and radiographic studies. These DDD patients may also have up to Grade I spondylolisthesis at the involved level.... The InFUSE Bone Graft/LT-CAGEtm Lumbar Tapered Fusion Device is to be implanted via an anterior open or an anterior laparoscopic approach.

1 .WARNINGS:

The safety and effectiveness of the InFUSE Bone Graft component ... used in surgical techniques other than [an] anterior open or anterior laparoscopic approaches have not been established. When degenerative disc disease was treated by a posterior lumber [sic] inter-body fusion procedure with cylindrical threaded cages, posterior bone formation was observed in some instances.

PRECAUTIONS:

Bone Formation

While not specifically observed in the clinical study, the potential for ectopic, heterotopic or undesirable exuberant bone formation exists.

ADVERSE EVENTS:

Potential Adverse Events:
The following is a list of potential adverse events which may occur with spinal fusion surgery with the InFUSE Bone Graft/LT-CAGE Lumbar Tapered Fusion Device. Some of these adverse events may have been previously reported in the adverse events table.
• Bone fracture.
• Bowel or bladder problems
• Cessation of any potential growth of the operated portion of the spine. Loss of spinal mobility or function.
• Change in mental status.
• Damage to blood vessels and cardiovascular system compromise.
• Damage to internal organs and connective tissue.
• Death.
• Development of respiratory problems.
• Disassembly, bending, breakage, loosening, and/or migration of components.
• Dural tears.
• Ectopic and/or exuberant bone formation.
• Fetal development complications.
• Foreign body (allergic) reaction.
• Gastrointestinal complications.
Is* Incisional complications.
• Infection.
• Insufflation complications.
• Neurological system compromise.
• Nonunion (or pseudarthrosis), delayed union, mal-union.
• Postoperative change in spinal curvature, loss of correction, height, and/or reduction.
• Retrograde ejaculation.
• Scar formation.
• Tissue or nerve damage.

After a hearing, the trial court sustained Medtronic’s exceptions of no cause of action and prescription. On the prescription issue, the court held that Mr. Raborn’s Third Superseding Petition stated a completely unrelated cause of action against a new defendant and therefore did not relate back to the original petition. The court farther found that although Mr. Raborn had no actual knowledge of the cause of action, he had constructive knowledge of a potential cause of action due to the warnings on the InFUSE product insert at the time of his surgery, and later due to a Wall Street Journal article and a shareholder lawsuit against Medtronic. Based on its finding that Mr. Raborn should have been alerted to a potential cause of action as of the time of his surgery, the court held that the doctrine of contra non valentem was inapplicable, that prescription began to run on the Medtronic claims on the date of his 2007 surgery, and therefore the Medtronic claims were prescribed one year from the date of the surgery. The trial court also sustained the exception raising the objection of no cause of action, but allowed Mr. Raborn an opportunity to amend his petition to attempt to state a cause of action in the event the prescription ruling was overturned on appeal. Mr. Raborn appealed the dismissal of his claims for prescription.

DISCUSSION

Louisiana Civil Code Article 3492 provides that delictual actions are subject to a liberative prescription of one year. This prescriptive period 17applies to all del-ictual actions, including those brought pursuant to the Louisiana Products Liability Act, La. R.S. 9:2800.51-.60. Denoux v. Vessel Management Services, Inc., 07-0163, p. 4 (La.App. 4 Cir. 7/11/07), 964 So.2d 1081, 1084, affirmed in part, vacated in part on other grounds, 07-2143, pp. 7-8 (La.5/21/08), 983 So.2d 84, 89. Prescription commences to run from the day injury or damage is sustained. Damage is considered to have been sustained, within the meaning of the article, only when it has manifested itself with sufficient certainty to support accrual of a cause of action. Cole v. Celotex Carp., 620 So.2d 1154, 1156 (La.1993) (citing McCray v. New England Ins. Co., 579 So.2d 1156, 1158 (La.App. 2 Cir.1991)).

Generally, the burden of proving an action is prescribed lies with the party pleading prescription. Hogg v. Chevron USA, Inc., 09-2632, p. 7 (La.7/6/10), 45 So.3d 991, 998. An exception to this general rule exists when the face of the petition shows that it is prescribed, in which case the burden shifts to the plaintiff to prove that prescription was interrupted or suspended. Bailey v. Khoury, 04-0620 (La.1/20/05), 891 So.2d 1268, 1275. Because Mr. Raborris claim against Med-tronic was clearly prescribed on the face of the petition, the burden is placed on Mr. Raborn to prove that prescription was interrupted or suspended.

Interruption of Prescription

Mr. Raborn first argues that the trial court erred in not finding that prescription on the Medtronic claim was interrupted by the timely filing of a suit against Dr. Albea. When the action asserted in an amended petition arises out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of the filing of the original petition. La. C.C.P. art. 1153. Pursuant to article |R1153, so long as a comparison of the amended petition to the original petition shows that the original petition gave fair notice of the factual situation out of which the amended petition arises, the amended petition will relate back to the date of the filing of the original petition and prescription with regard to the amendment is interrupted as of the filing date of the original petition. Reese v. State Dep’t of Pub. Safety & Corr., OS-1615, p. 6 (La.2/20/04), 866 So.2d 244, 248. Where there is some factual connexity between the original and amended assertions, together with some identity of interest between the original and supplemental party, an amendment should be allowed and excepted from the interests intended to be protected by the prescriptive statutes. Id. The essence of interruption of prescription is notice. Id. at p. 6, 866 So.2d at 249. Thus, the question before this court is whether the allegations of Mr. Raborn’s original petition sufficiently put Medtronic on notice that a products liability action against it was at issue in this case.

The trial court found that the 2006 surgery and subsequent procedures were completely unrelated to the off-label use of the InFUSE product in the 2007 surgery, and therefore prescription was not interrupted on the Medtronic claim by the filing of the malpractice suit. Mr. Raborn argues that but for Dr. Albea’s malpractice, the second surgery where the Medtronic product was used would not have been necessary. While that may be true, the products liability claim against Medtronic simply does not arise out of the same conduct, transaction, or occurrence as the medical malpractice claims asserted in the original petition, and the allegations of the original petition do not provide fair notice to Medtronic that a products liability action against it would be at issue. Thus, the trial court did not err in |9concluding that the claims against Medtronic do not relate back to the filing of the original petition.

Constructive knowledge

Mr. Raborn next argues that the trial court erred in finding that he had constructive knowledge of a claim against Medtronic so as to commence the running of prescription. He alleges that at the time he filed his original petition in October of 2009, he had difficulty walking, saddle pain, periodic incontinence, sexual dysfunction, and compression of the Cauda Equina, and at the time of his First Superseding Petition in October of 2010, he had been diagnosed with Cauda Equina Syndrome, cord compression, scarring of nerves, leg pain, buttock and saddle pain, tremors, sexual dysfunction, and bladder and bowel problems. However, since his doctors had not yet determined the cause to be the InFUSE product at the time of the filing of those petitions, he argues that he could not have been reasonably expected to know of his cause of action against Medtronic.

The doctrine of contra non va-lentem prevents the running of liberative prescription where the cause of action is not known or reasonably knowable by the plaintiff. It is often difficult to identify a precise point in time at which the claimant becomes aware of sufficient facts to begin the running of prescription. In re Medical Review Panel of Howard, 573 So.2d 472, 474 (La.1991). In Jordan v. Employee Transfer Corp., 509 So.2d 420, 423 (La. 1987), the supreme court stated:

Prescription will not begin to run at the earliest possible indication that a plaintiff may have suffered some wrong. Prescription should not be used to force a person who believes he may have been damaged in some way to rush to file suit against all parties who might have caused that damage. On the other hand, a plaintiff will be responsible to seek out those whom he believes may be responsible for a specific injury.

110When prescription begins to run depends on the reasonableness of a plaintiffs action or inaction. Jordan, 509 So.2d at 423. As stated in Knaps v. B & B Chemical Co., Inc., 828 F.2d 1138, 1140 (5th Cir.1987) (decided shortly after Jordan and relying upon that case), the question is whether, in light of plaintiffs own information and the diagnoses he received, the plaintiff was reasonable to delay in filing suit.

Louisiana Code of Civil Procedure article 931 provides that evidence may be introduced on an exception of prescription. Where, as here, evidence is introduced at the hearing on a peremptory exception of prescription, the trial court’s findings of fact are reviewed under the manifest error-elearly wrong standard of review. Ba-bineaux v. State ex rel. Dept, of Tramp. & Dev., 04-2649, p. 3 (La.App. 1 Cir. 12/22/05), 927 So.2d 1121, 1123. If the findings are reasonable in light of the record reviewed in its entirety, an appellate court may not reverse even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Id.

The InFUSE product insert was introduced at the hearing held on exception of prescription. This insert, which was available to Mr. Raborn at the time of his surgery, informed him that the use of the product in his 2007 surgery was considered “off-label” and its safety and effectiveness had not been established. The insert also listed potential adverse events from use of the device, several of which were complaints Mr. Raborn listed in his original petition in 2009 and his First Superseding Petition in 2010: bowel or bladder problems, neurological system compromise, retrograde ejaculation, scar formation, and tissue or nerve damage. Given this evidence and the particular facts of this case, we do not find manifest error in the trial In court’s conclusion that the InFUSE product insert put Mr. Raborn on notice at the time of his surgery as to his potential claims against Medtronic.

Texas Law

Finally, Mr. Raborn argues that the two-year Texas statute of limitations should have been applied to his claims against Medtronic, instead of Louisiana’s one-year prescriptive period, because his surgery was performed in Texas.

Louisiana Civil Code article 3549(B) provides that:

B. When the substantive law of another state would be applicable to the merits of an action brought in this state, the prescription and peremption law of this state applies, except as specified below:
(1) If the action is barred under the law of this state, the action shall be dismissed unless it would not be barred in the state whose law would be applicable to the merits and maintenance of the action in this state is warranted by compelling considerations of remedial justice.

Although Mr. Raborn argues that his claim would not be prescribed if the court would apply Texas’s two-year statute of limitations, since we have concluded that Mr. Raborn had constructive knowledge of his potential cause of action against Med-tronic at the time of his June 2007 surgery, and Mr. Raborn did not file his Third Superseding Petition stating a claim against Medtronic until May 18, 2012, the issue of which state statute applies is moot.

CONCLUSION

The judgment of the trial court dismissing Mr. Raborn’s claims against Medtronic on the grounds of prescription is affirmed. Costs of this appeal are assessed to Mr. Raborn.

AFFIRMED.

KUHN, J., Concurs in the Result.

      . Although the decision of the medical review panel states that the dates of the alleged malpractice were 6/6/06 — 10/9/06, Mr. Raborn was not referred to Dr. Dunn until October of 2006 and the procedures performed by Dr. Dunn which Mr. Raborn allege amounted to malpractice were performed in March of 2007. Nevertheless, the Medical Review Panel decision addressed the discogram performed by Dr. Dunn in March of 2007 and found no deviation from the standard of care.

      . Finding the InFUSE product label to be sufficient notice, we do not address nor do we express any opinion as to the Wall Street Journal article or the shareholders’ lawsuit.


source: Caselaw Access Project

author: KUHN, J.

license: Public Domain

text:
    AMERICAN HOME INSURANCE COMPANY UNIFIED RECOVERY GROUP L.L.C. v. Keith MORRISON.
    No. 2013 CA 1448.
    Court of Appeal of Louisiana, First Circuit.
    April 28, 2014.

      Raymond S. Maher, Jr., K. Elizabeth “Libby” Heinen, New Orleans, LA, for Plaintiff-Appellee American Home Insurance Company.
    C. Ray Murry, Shannon C. Lindsey, Sli-dell, LA, for Defendant-Appellant Keith Morrison.
    Before KUHN, HIGGINBOTHAM, and THERIOT, JJ.
   KUHN, J.

LThe defendant-appellant, Keith Morrison, appeals a workers’ compensation judgment of April 5, 2013, which we reverse.

Procedural History and Facts

Mr. Morrison was injured on January 11, 2008, while in the employ of United Recovery Group, LLC (United Recovery). Plaintiff-appellee, American Home Assurance Company (American Home), is the workers’ compensation insurer of United Recovery. It appears that Mr. Morrison originally filed a claim for workers’ compensation in docket Number 09-07382 in the Office of Workers’ Compensation (OWC). However, the record presented to this Court in the instant case arising out of Workers’ Compensation docket No. 13-00819 contains nothing from the record of the proceedings in the original claim. The nature of Mr. Morrison’s original compensation claim is not now before this court. Therefore, our knowledge of those proceedings is limited to the little we are able to infer from the brief references to those proceedings found in the transcript of the Workers’ Compensation hearing in the instant case and the various filings of the parties to the proceedings now before this Court.

On January 25, 2013, the instant proceedings were initiated when a “Disputed Claim for Compensation” was filed by American Home as the insurer of Mr. Morrison’s employer, United Recovery, on the grounds that Mr. Morrison failed to appear for “properly noticed second medical opinions with Dr. Najeeb Thomas on November 8, 2012 and January 8, 2013.” On March 13, 2013, for reasons that do not appear in the record, another identical “Disputed Claim for Compensation” was filed. However, contemporaneous with the filing of this second “Disputed Claim for Compensation,” American Home also filed a “Motion to Terminate/Reduce Benefits or Compel Second Medical Opinion.” This Motion alleged, inter alia, that Mr. Morrison had already received benefits in the form of |spayments to medical providers totaling $288,844.84. These payments are not disputed in these proceedings.

On March 14, 2013. the OWC issued a show cause order pursuant to this motion, returnable on April 5, 2013. On April 1, 2013, Mr. Morrison filed a pleading entitled, “Employee’s Exceptions and Defenses and Answer,” along with a supporting memorandum and exhibits. In this pleading, Mr. Morrison asserted the following exceptions:

1. Dilatory exception of prematurity.
2. Dilatory exception of nonconformity of the petition,
3. Dilatory exception of vagueness.
4. Preemptory exception of no cause of action.
5. Preemptory exception of no right of action.

Further, Mr. Morrison also asserted that the proceedings against him were unconstitutional by virtue of failing to allege a “Bona Fide Dispute” (see La. R.S. 23:1310(A)) and because his employer was seeking an advisory opinion.

At the hearing held on April 5, 2013, the OWC judge rendered oral reasons that were later followed by a written judgment and written reasons dated May 2, 2013. The May 2, 2013 judgment denied all of Mr. Morrison’s exceptions; denied his claims of unconstitutionality; granted American Home’s motion to compel a second medical opinion, but ordered United Recovery to provide transportation; denied American Home’s motion to suspend benefits; denied Mr. Morrison’s oral motion for sanctions; denied Mr. Morrison’s oral motion to amend the petition, but allowed that once the stay was lifted, Docket No. 09-07382 “may be amended for actions predicated in this docket;” and dismissed the instant case, i.e., Docket No. 13-00.819.

On April 17, 2013, after the rendering of the oral judgment, but priorto the May 2, 2013 issuance of the written judgment and reasons in support thereof, Mr. 14Morrison filed a Motion to Stay in order to permit him to take writs to this Court, which was denied. At the same time, he filed a notice of intention to apply for writs to this Court, which was ordered returnable on May 31, 2013. Prior to this return date, on May 29, 2013, Mr. Morrison filed a Motion for Devolutive Appeal pursuant to which this case is now before this Court.

Assignments of Error

Mr. Morrison asserts three assignment of error. However, they all relate to whether or not certain statutes should have retroactive effect and, therefore, shall be considered as one.

Louisiana Revised Statutes 23:1314 was referred to by the OWC as the “Prematurity Statute.” Mr. Morrison contends that the Disputed Claim for Compensation filed below by the appellee was prematurely filed as it failed to meet any of the four enumerated requirements set forth in R.S. 23:1314(A):

A. The presentation and filing of the petition under R.S. 23:1310.3 shall be premature unless it is alleged in the petition that:
(1) The employee or dependent is not being or has not been paid, and the employer has refused to pay, the maximum percentage of wages to which the petitioner is entitled under this Chapter; or
(2) The employee has not been furnished the proper medical attention, or the employer or insurer has not paid for medical attention furnished; or
(3) The employee has not been furnished copies of the reports of examination made by the employer’s medical practitioners after written request therefore has been made under this Chapter; or
(4) The employer or . insurer has not paid penalties or attorney’s fees to which the employee or his dependent is entitled.

It is undisputed that the Disputed Claim for Compensation meets none of these four exceptions to prematurity. However, the appellee seeks to avail itself of the benefit of La. Acts 2012, No. 860, § 1, whereby this statute was amended to add the following as La. R.S. 23:1314(E):

| .^Notwithstanding any other provision of this Section, the employer shall be permitted to file a disputed claim to controvert benefits or concerning any other dispute arising under this Chapter. [Emphasis added.]

This amendment, if applicable, would arguably permit the filing of the Disputed Claim for Compensation as timely. However, this provision was not in effect when Mr. Morrison was injured in 2008. Mr. Morrison contends that it is substantive in effect and cannot constitutionally be applied retroactively. Mr. Morrison does not dispute the fact that if instead it is deemed to be procedural or remedial in nature then it can be applied retroactively. The OWC noted that La. R.S. 23:1310 was in effect at the time Mr. Morrison was injured. It provides for the filing of disputed claims:

A. If, at any time after notification to the office of the occurrence of death or injury resulting in excess of seven days lost time, a bona fide dispute occurs, the employee or his dependent or the employer or insurer may file a claim with the state office, or the district office where the hearing will be held,, on a form to be provided by the director.
B. In addition to any other information required by the director, the claim shall set forth the time, place, nature, and cause of the injury, the benefit in dispute, and the employee’s actual earnings, if any, at the time of the filing of the claim with the office.

[Emphasis added.]

Thus, the GWC noted that under La. R.S. 23:1310 the employer’s right to file a claim was established prior to the date of the injury. We agree. The OWC further noted that the prematurity bar that was found in La. R.S. 23:1314 at the time of the injury was procedural in nature. Therefore, when it was amended to permit the filing by the employer of claims such as the one filed in these proceedings, without the necessity of waiting for the occurrence of any of the factors listed in part “A” of the statute, the amendment was procedural in nature and, consequently, retroactive. We agree.

Additionally, the OWC noted that:

| fiIn 1999, Hearing Officer Rule 5501B(1) was amended to define “claimant” as “the injured employee, the employer, the insurance carrier, the group self-insurance fund, the health care provider, or a dependent.” [Emphasis added.]

The OWC “found it was the legislature’s intent to have the Prematurity statute reflect the cause of action already in effect.” We agree. None of the cases cited by Mr. Morrison are relevant to the time period during which La. R.S. 23:1314(E), as amended by La. Acts 2012, No. 860, § 1, was in effect. If that were all there were to this issue, we would agree with the appellee and affirm the trial court.

But Mr. Morrison points out that matters did not end with the rendering of the judgment below. He notes that La. R.S.; 23:1314 was again amended, replacing the language relied upon by the appellee in 23:1314(E), with the following language adopted by La. Acts 2013, No. 337, § 1:

(2) Notwithstanding any other provision of this Section, the employer or payor shall be permitted to file a disputed claim against a person or entity other than an injured employee, his dependent, or beneficiary concerning any other dispute arising under this Chapter. [Emphasis added.]

The effective date of this amendment was August 1, 2018, after the judgment below was rendered and after Mr. Morrison filed this appeal. Nonetheless, Mr. Morrison contends that this amendment should be applied retroactively, making what might be characterized as a “what is sauce for the goose is sauce for the gander” type of argument, i.e., if the 2012 amendment relied upon by the appellee is to be given retroactive effect, then the 2013 amendment should also be given retroactive effect. We agree. The argument that the 2013 amendment should be given retroactive effect is, in fact, even stronger than the argument to the same effect regarding the 2012 amendment, because when the 2013 amendment was enacted, the legislature specified that it be given retroactive ^effect. The legislature was silent on the subject when it enacted the 2012 amendment.

Having determined that the 2013 amendment is to be given effect retroactively, we now turn to the question of whether it is-too late to raise that issue when the effective date of the retroactive statute occurs after judgment is rendered. Mr. Morrison relies on Segura v. Frank, 93-1271, 93-1401 (La.1/14/94), 630 So.2d 714, cert. den. sub nom., Allstate Ins. Co. v. La. Ins. Guar. Ass’n, 511 U.S. 1142, 114 S.Ct. 2165, 128 L.Ed.2d 887 (1994), in support of his argument that the rendering of the judgment below prior to the effective date of the 2013 amendment does not prevent its retroactive application. We agree based on our reading of Segura:

The third circuit noted that at the time of the proceedings in the trial court, Act 237 of 1992 had not yet been passed and “could not have been considered by the trial judge, much less applied to these proceedings.” The court concluded that “in the normal scheme of events” the applicability of the 1992 amendment should not be argued for the first time on appeal. If the third circuit is correct, then we need not consider LIGA’s argument that the 1992 amendment applies.
The general rule is that appellate courts will not consider issues raised for the first'time on appeal. Another general rule, however, is that an appellate court is bound to adjudge a case before it in accordance with the law existing at the time of its decision. Where the law has changed during the pendency of a suit and retroactive application of the new law is permissible, the new law applies on appeal even though it requires reversal of a trial court judgment which was correct under the law in effect at the time it was rendered. Needless to say, where the law has changed after the trial court’s decision, the applicability of the new law can be argued for the first time only on appeal.
In light of the foregoing, we conclude a claim is pending as long as it is subject to judicial scrutiny. Even though a lower court has adjudicated a claim and rendered judgment, the claim continues to be pending until appeal of that judgment has been exhausted. Until then, something further remains to lsfix the plaintiffs right to enforce the claim as well as the defendant’s obligation to pay it.

Segura, 630 So.2d at 725 & 727. [Citations omitted.] [Footnote omitted.]

Retroactive application would not impose an inequitable result in this case, given that American Home requested retroactive application of the 2012 amendment to the same statute in the OWC. See Wilson ex rel. Wilson v. Landry, 98-2365 (La.App. 1st Cir.12/28/99), 748 So.2d 655, 661, writ denied, 00-0260 (La.3/24/00), 758 So.2d 155. Where the position of the ap-pellee is predicated on a retroactivity argument, it is offensive to the sense of fair play and justice to deny to the appellant the benefits of retroactivity when the retroactive nature of the 2013 statute upon which he bases his argument is so much stronger than that of the 2012 statute upon which appellee relies. In other words, if the 2012 statute has retroactive effect, the 2013 statute is even more clearly retroactive, and Mr. Morrison prevails. Conversely, if the 2013 statute does not have retroactive effect, then the 2012 statute even more clearly does not have retroactive effect and Mr. Morrison prevails. Consequently, once this Court decided to apply Segura, thereby permitting the consideration of the retroactive effect of the 2013 amendment for the first time on appeal, Mr. Morrison must prevail.

CONCLUSION

For the foregoing reasons, the judgment below is reversed and judgment is hereby rendered in favor of the defendant-appellant, Mr. Morrison, and against the plaintiff-appellee, American Home, dismissing its claim in its entirety. As the law upon which this judgment is based did not go into effect until after the judgment below had been rendered and this appeal had been filed, each party is to bear its own costs.

REVERSED AND RENDERED.

HIGGINBOTHAM, J. concurs.

THERIOT, J. concurs.

      . Section 2 of La. Acts 2013, No. 337, states, "This Act is declared to be remedial, curative, and procedural and therefore is to be applied retroactively as well as prospectively.”


author: JAMES F. McKAY III, Chief Judge.

text:
    STATE of Louisiana v. Wayne J. LANDRY.
    No. 2013-KA-1030.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 7, 2014.

      Leon A. Cannizzaro, Jr., District Attorney Of Orleans Parish, J. Bryant Clark, Jr., Assistant District Attorney of Orleans Parish, New Orleans, LA, for State of Louisiana.
    Frank Gerald Desalvo, Brigid E. Collins, Frank G. Desalvo, APLC, New Orleans, LA, for Defendant/Appellee.
    (Court composed of Chief Judge JAMES F. McKAY III, Judge PAUL A. BONIN, Judge MADELEINE M. LANDRIEU).
   JAMES F. McKAY III, Chief Judge.

LThe State appeals the trial court’s judgment granting Wayne Landry’s motion to quash the bill of information. After a review of the record, we find that the trial court erred in granting the defendant’s motion to quash. Therefore, we reverse, vacate the judgment, and remand the matter to the trial court for further proceedings consistent with this opinion.

PROCEDURAL AND FACTUAL BACKGROUND

The record before this Court is limited to pre-trial documents and transcripts from the hearings on the motion to quash the bill of information.

On October 13, 2010, the State of Louisiana charged the defendant, Wayne Landry, via a bill of information, with one count of issuing a worthless check to Louis Harding in the amount of five hundred dollars or more. See La. R.S. 14:71. He was arraigned on July 11, 2011, and entered a plea of not guilty. On December 10, 2012, the defendant filed a motion to quash the bill of information and memorandum in support of his motion asserting that that there is no evidence to show that he stole anything of value from Louis Harding and that the matter is civil in nature. On February 22, 2013, a hearing was held, and the trial court granted the defendant’s motion to quash. On May 21, 2013, the trial court reversed its 12previous ruling, which had granted the defendant’s December 10, 2012 motion to quash, and the State amended the bill of information from charging the defendant with issuing a worthless check to charging him with theft in the amount of five hundred dollars ($500.00) or more. See La. R.S. 14:67(B)(2). The defendant re-urged the motion to quash, based on the amended bill of information, incorporating his prior arguments. The trial court again granted the defendant’s motion to quash the bill of information.

In his appellant brief the defendant accepted the State’s recitation of the statement of the case. The alleged facts and accusations in the underlying criminal prosecution are contained only in the defendant’s motion to quash the bill of information and memorandum in support, and in the State’s motion and memorandum in support of its opposition to the defendant’s motion to quash. While the allegations per se are not pertinent to the instant matter, we have nonetheless gleaned from the record the following facts. On or before September 10, 2010, the defendant entered into a $100,000.00 contract with Louis Harding to perform repair work on Mr. Harding’s property located at 3100 Washington Avenue. While the defendant was performing that work, the property wound up being demolished. On August 5, 2009, Louis Harding sent Wayne Landry a demand letter requesting a refund of the monies he had paid on the contract ($45,-000), alleging that the contracted work had not been performed. On July 27, 2011, the State allegedly handed discovery items over to the defense that included a copy of a handwritten contract for repairs on Mr. Harding’s property.

ASSIGNMENT OF ERROR

|sThe State asserts that trial court abused its discretion in granting the defendant’s motion to quash the bill of information. The State essentially argues that the trial court’s ruling was based upon the defendant’s factual defenses relating to the merits of the underlying criminal prosecution, which are not proper grounds for a motion to quash pursuant to La.C.Cr.P. art. 532 and applicable jurisprudence.

DISCUSSION

La.C.Cr.P. art. 531 provides that all pleas or defenses raised prior to trial, other than mental 'ineapacity to proceed, not guilty, or not guilty by reason of insanity, shall be urged by a motion to quash.

As the Louisiana Supreme Court held in State v. Byrd 96-2302, (La.3/13/98), 708 So.2d 401, 411 (footnote omitted):

A motion to quash is, essentially, a mechanism whereby pretrial pleas are urged, i.e., pleas which do not go to the merits of the charge. At a hearing on such a motion, evidence is limited to ^procedural matters and the question of factual guilt or innocence is not before the court. La.C.Cr.P. art. 531 et. seq.; State v. Rembert, 312 So.2d 282 (La. 1975); State v. Patterson, 301 So.2d 604 (La.1974).
In considering a motion to quash, a court must accept as true the facts contained in the bills of information and in the bill of particulars, and determine as a matter of law and from the face of the pleadings, whether a crime has been charged; while evidence may be adduced, such may not include a defense on the merits. State v. Gerstenberger, 260 La. 145, 255 So.2d 720 (1971); State v. Masino, 214 La. 744, 750, 38 So.2d 622 (1949) (“the fact that defendants may have a good defense is not sufficient grounds to quash the indictment”).
As this Court held in State v. Legendre, 362 So.2d 570, 571 (La.1978), “[t]he question, then, is whether the indictment charges a valid offense. If it does not, it is a defective indictment and its invalidity may be declared by a ruling on a motion to quash, for a motion to quash may be based on the ground that the indictment fails to charge an offense which is punishable under a valid statute.” Legendre goes on to note that “[i]t will not do to base an indictment for a serious offense ... upon an allegation of fact which cannot conceivably satisfy an essential element of the crime.... ” Legendre, 362 So.2d 570, 571.

At the February 22, 2013 hearing on the defendant’s motion to quash the bill of information, the trial court stated, “I’ve reviewed both the Defense’s motion, supporting memorandum, and the reply by the State. At this time, the Defense motion is granted.” At the May 21, 2013 hearing, the State urged the trial court to reverse its February 22, 2013 ruling, which the trial court did. The State then proceeded to amend the original bill of information to reflect a change in the charge to theft over five-hundred dollars ($500.00). The defendant re-urged its motion to quash on the amended bill of information incorporating all prior arguments, both written and oral. The trial court again granted the defendant’s motion to quash. We can only deduce from these facts that the trial court based its May 21, 2013 judgment granting the defendant’s motion to quash on the same motions and memorandums provided at the February 22, 2013 hearing, which are part of the instant record.

| fiThe State argues that the crux of the defendant’s written motion to quash the bill of information is that there is absolutely no information or evidence showing that Mr. Landry stole anything from Mr. Harding. The State takes the position that whether or not the evidence is sufficient to sustain a conviction relates to the actual merits of the charge, and therefore, is not a valid basis for the defendant’s motion to quash.

The defendant maintains that the State cannot establish an essential element of the offense charged under any set of facts conceivably provable at trial and that the circumstances surrounding this case do not rise to the level of criminal theft pursuant to La. R.S. 14:67(B)(2). The defendant thus submits that the trial court’s ruling quashing the bill of information was correct.

We agree with the State that under Byrd, factual defenses going to the merits of the charge are not proper grounds to be considered when deciding a motion to quash. While the trial court was silent regarding its reasons for granting the defendant’s motion to quash, it clearly relied upon the arguments asserted by the defendant in his motion and memorandum in support.

Because the alleged facts must be accepted as true, the decision on a motion to quash is solely a question of law. See Byrd, supra. Thus, we review the trial judge’s ruling in this case under the de novo standard. Under this standard of review, we do not defer to any factual findings by the trial judge. Moreover, in deciding a motion to quash a bill of information, the trial court is not authorized to make any factual determinations. Because the trial court obviously relied upon factual defenses raised by the defendant as to the merits of the charge, the trial court erred by granting the motion to quash.

IrAs provided in La.C.Cr.P. arts. 61 and 62, 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. Here, pursuant to its statutory authority, the State determined that a criminal offense had occurred and chose to pursue criminal prosecution of the matter.

While the State does not have to prove all of the elements of the charge at a preliminary hearing on a motion to quash, it must provide the trial court with sufficient prima facie evidence to support the charge against the defendant. We have reviewed the bill of information and, accepting as true the allegations contained therein, we conclude that the allegations are sufficient to support the charge against the defendant.

CONCLUSION

For the foregoing reasons, the trial court’s ruling granting the defendant’s motion to quash the bill of information is reversed; the judgment is vacated; and the matter is remanded to the trial court for further proceedings consistent with this opinion.

REVERSED; VACATED AND REMANDED.

      . We note that these items are not part of the record before this Court.

      . Art. 532. General grounds for motion to quash
      A motion to quash may be based on one or more of the following grounds:
      (1)The indictment fails to charge an offense which is punishable under a valid statute.
      (2) The indictment fails to conform to the requirements of Chapters 1 and 2 of Title XIII. In such case the court may permit the district attorney to amend the indictment to correct the defect.
      (3) The indictment is duplicitous or contains a misjoinder of defendants or offenses. In such case the court may permit the district attorney to sever the indictment into separate counts or separate indictments.

        (4) The district attorney failed to furnish a sufficient bill of particulars when ordered to do so by the court. In such case the court may overrule the motion if a sufficient bill of particulars is furnished within the delay fixed by the court.
      (5) A bill of particulars has shown a ground for quashing the indictment under Article 485.
      (6) Trial for the offense charged would constitute double jeopardy.
      (7) The time limitation for the institution of prosecution or for the commencement of trial has expired.
      (8) The court has no jurisdiction of the offense charged.
      (9) The general venire or the petit jury veni-re was improperly drawn, selected, or constituted.
      (10) The individual charged with a violation of the Uniform Controlled Dangerous Substances Law has a valid prescription for that substance.


author: JOY COSSICH LOBRANO, Judge.

text:
    STATE of Louisiana v. Frank E. HAYNES.
    No. 2013-KA-0323.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 7, 2014.

      Leon A. Cannizzaro, Jr., District Attorney, Kyle Daly, Assistant District Attorney, Parish of Orleans, New Orleans, LA, for Appellee/State of Louisiana.
    Powell W. Miller, Louisiana Appellate Project, New Orleans, LA, for Defendant/Appellant.
    (Court composed of Judge DENNIS R. BAGNERIS, SR., Judge PAUL A. BONIN, Judge JOY COSSICH LOBRANO).
   JOY COSSICH LOBRANO, Judge.

| following a trial, a jury convicted defendant, Frank E. Haynes, of second degree murder in the death of Barry Jean-marie. The trial court sentenced Haynes to life imprisonment at hard labor, without the benefit of parole. Haynes appealed his conviction and sentence. For the reasons that follow, we affirm.

Reginald Walker testified that on the evening of June 15, 2011, he, his son, Gir-ard Broussard, and Jeanmarie, were hanging out in front of Broussard’s grandfather’s house on the corner of Mazant and Villere Streets. After deciding to buy some beer and snacks, they rode their bicycles to Mike’s Grocery on St. Claude Avenue. Walker rode his own bicycle. Broussard rode Jeanmarie’s bicycle with Jeanmarie seated on the handlebars. When they arrived at the store, Jeanmarie noticed a bicycle outside the store and stated that he wanted to steal it. Walker told Jeanmarie to leave the bicycle alone. Walker went into the store and purchased some beer. When he left the store, Walker saw Jeanmarie riding on the handlebars of his bicycle. However, after Walker crossed the street and looked back, he no longer saw Jeanmarie on his bicycle. Je-anmarie had apparently taken |2the bicycle that was outside the grocery store. While Walker was riding his' own bicycle, an unknown man came up and pulled him off the bicycle. The man thought that the bicycle belonged to him. When Walker told the man that the bicycle belonged to him (Walker), the man realized that he was wrong and walked off. The man said that he was going to kill whoever took his bicycle. Walker identified the man as the person in the still shot of the store video. He stated that the man was wearing a white shirt and black shorts. Walker and Broussard rode the bicycles back to Brous-sard’s grandfather’s house. A short time later, Walker saw the unknown man, accompanied by two other men, again in the neighborhood, looking for his bicycle. He found the bicycle across the street, behind a house. The man then rode his bicycle up and down the neighborhood a couple of times. Shortly thereafter, Walker heard gunshots. He ran around the corner and saw Jeanmarie lying on the ground.

Girard Broussard corroborated Walker’s testimony as to the events that led up to the shooting. However, Broussard testified that Albert Davis was also in front of his grandfather’s house when he, Walker and Jeanmarie decided to go to buy beer and cigarettes, but Davis did not go with them to the store.

Albert Davis corroborated Broussard’s testimony that he, Walker, Broussard and Jeanmarie were talking in front of Brous-sard’s grandfather’s house when the others decided to go to the grocery store to buy beer. Walker rode his bicycle while Broussard and Jeanmarie rode on Jean-marie’s bicycle. Davis testified that Jean-marie returned from the store first but was on a different bicycle. Jeanmarie, 13who appeared nervous, asked Davis if anyone had come looking for him. Davis told him that no one had come looking for him. When Davis turned around, Jean-marie was gone. Walker and Broussard came back a short time later and told Davis that Jeanmarie had taken someone’s bicycle. A few minutes later, a man came by saying he was going to kill whoever took his bicycle. The man was walking up and down the street at first, but then came back riding on a bicycle. There were two other men with him. Davis said the man was wearing a white shirt and black gym shorts and appeared to be clutching something in his waistband. The man went down Mazant Street, and then Davis heard gunshots. Davis went around the corner and saw Jeanmarie lying on the ground. Davis went to Jeanmarie and held him in his arms. Davis saw the man pass one more time and heard the man say that he told them he was going to get the guy who stole his bicycle. The night of the incident Davis went to the homicide office and gave NOPD Detective Michael Cochran a statement. Davis identified Haynes at trial as the person on the bicycle who said he was going to kill Jeanmarie.

Det. Cochran testified that he obtained an audiotaped statement from Davis the night of the shooting and one from Ranz Jefferson, another person with information about the case, ten days after the incident. Det. Cochran identified both audiotaped statements at trial. He testified that Jefferson provided him with the name of “Hayne” as a potential suspect. He ran the name through the database and found a photograph of a person with that name. He put the photograph in a photographic lineup. However, Jefferson did not identify anyone in that lineup. |4Once Det. Cochran verified that the suspect’s last name was “Haynes,” he located a photograph of the defendant and put it in a photographic lineup, which he showed to Jefferson. Jefferson identified Haynes as the perpetrator. While Jefferson was at the police station giving a statement to Det. Cochran, Jefferson received a telephone call from Haynes on Jefferson’s cell phone. Haynes was placed on speaker phone, and Det. Cochran heard the conversation between Jefferson and Haynes. Haynes told Jefferson that he was hiding from the police and that the gun he used was at his aunt’s house. Det. Cochran obtained a search warrant for the Haynes’s aunt’s residence. When they executed the search warrant, the detective spoke with Haynes’s aunt and learned that Haynes lived there. However, the gun was not found at the residence, and no evidence was collected.

Det. Cochran conducted a photographic lineup with Davis. Davis could not identify Haynes in the photographic lineup. However, Davis identified Haynes in a still shot of the video taken from the grocery store. Det. Cochran noted that Haynes had dreadlocks in the photograph used in the photographic lineup but had short hair at the time of the incident. The day after the incident, Det. Cochran received a telephone call from Davis, indicating that there was a spent bullet that was still on the murder scene. Det. Cochran relocated to the scene, secured the bullet and called the crime lab. The crime lab technician came out to the scene, photographed the spent bullet and secured the evidence. At trial, the detective identified the bullet, a .38, caliber, found at the scene.

IsRanz Jefferson testified that he knew both Haynes and Jeanmarie from playing basketball with them. A few days after the shooting, Jefferson was sitting outside his house when Haynes approached him and asked Jefferson to go to the store for him. Haynes appeared very nervous. Haynes asked Jefferson if he could keep a secret and then proceeded to tell Jefferson that he shot Jeanmarie. Haynes told Jefferson that Jeanmarie had stolen his bicycle; that he got his bicycle back; and that he shot Jeanmarie four to five times. Haynes told Jefferson that he shot Jean-marie in the back when he tried to run. Haynes had shown Jefferson the weapon, a .38 caliber handgun, a few weeks before the shooting. Haynes did not have the gun on him when he told Jefferson about the shooting. Jefferson asked Haynes why he shot the victim. Haynes stated that he shot Jeanmarie because he felt disrespected. Jefferson stated that he met with Det. Cochran, gave him a statement and identified Haynes in a photographic lineup, because he was tired of seeing murders. Jefferson stated that while the photograph in the lineup showed Haynes with dreadlocks, Haynes did not have dreadlocks at the time of the shooting. When Jefferson was speaking with Det. Cochran, he received a telephone call from Haynes. Jefferson put the speaker phone on so Det. Cochran could hear the conversation. Haynes told Jefferson that the gun was at his aunt’s house. Jefferson identified Haynes at trial.

Dr. Samantha Huber, a forensic pathologist with the Orleans Parish Coroner’s Office who conducted the autopsy, testified that Jeanmarie suffered a total of five gunshot wounds. She said that the gunshot wounds to the right chest | fiarea and left side of the head were potentially fatal, and the cause of death was multiple gunshot wounds. She was able to recover one of the bullets and multiple bullet fragments. Dr. Huber verified there was no stippling or soot around any of the entry wounds, suggesting that the weapon was at least twelve to eighteen inches away from the victim when the victim was shot.

NOPD Det. Greg Hamilton testified that he participated in the investigation and obtained a surveillance video from Mike’s Grocery on St. Claude Avenue. He had the video footage placed on a disk. The video was played for the jury.

The parties stipulated that if Meredith Acosta testified she would be qualified as an expert in firearms examination and that her testimony would be consistent with her report, which introduced into evidence at trial. The report revealed that the spent bullet found on the scene and one of the bullets retrieved during the autopsy were fired from the same weapon.

A review of the record for errors patent reveals that the trial court failed to impose defendant’s life sentence without benefit of probation or suspension of sentence. La. R.S. 14:30.1 requires that the life sentence be served without benefit of probation, parole or suspension of sentence. The minute entry indicates that the trial court imposed the sentence without benefit of probation, parole or suspension of sentence. However, the sentencing transcript reveals that the trial court imposed a life sentence without the benefit, of parole. Generally, when there is a conflict between the minute entry and the trial transcript, the transcript controls. State v. Jackson, 2008-0286 (LaApp. 4 Cir. 4/29/09), 11 So.3d 524.

|7In instances where the statutory restrictions were not recited at sentencing, they are contained in the sentence, whether or not imposed by the sentencing court. La. R.S.15:301.1(A); State v. Williams, 2000-1725, p. 10 (La.11/28/01), 800 So.2d 790, 799. Consequently, this Court need not correct this error.

No other patent errors were found.

In his first assignment of error, Haynes argues that the State failed to prove that he was the person who killed Jeanmarie. Specifically, he contends his identification as the perpetrator was erroneous.

In evaluating whether evidence is constitutionally sufficient to support a conviction, an appellate court must determine whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the defendant guilty beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Green, 588 So.2d 757 (LaApp. 4 Cir.1991). However, the reviewing court may not disregard this duty simply because the record contains evidence that tends to support each fact necessary to constitute the crime. State v. Mussall, 523 So.2d 1305 (La.1988). The reviewing court is not permitted to consider just the evidence most favorable to the prosecution but must consider the record as a whole since that is what a rational trier of fact would do. If rational triers of fact could disagree as to the interpretation of the evidence, the rational trier’s view of all the evidence most favorable to the prosecution must be adopted. The fact finder’s discretion will be impinged upon only to the extent necessary to guarantee the fundamental protection of due process of law. Mussall, 523 So.2d at 1310. “[A] reviewing court is not called upon to decide whether it believes the witnesses or whether the | ^conviction is contrary to the weight of the evidence.” State v. Smith, 600 So.2d 1319, 1324 (La. 1992).

In addition, when circumstantial evidence forms the basis of the conviction, such evidence must consist of proof of collateral facts and circumstances from which the existence of the main fact may be inferred according to reason and common experience. State v. Shapiro, 431 So.2d 372 (La.1982). The elements must be proven such that every reasonable hypothesis of innocence is excluded. La. R.S. 15:438. This is not a separate test from Jackson v. Virginia, but rather is an evidentiary guideline to facilitate appellate review of whether a rational juror could have found a defendant guilty beyond a reasonable doubt. State v. Wright, 445 So.2d 1198 (La.1984). All evidence, direct and circumstantial, must meet the Jackson reasonable doubt standard. State v. Jacobs, 504 So.2d 817 (La.1987). If a rational trier of fact reasonably rejects the defendant’s hypothesis of innocence, that hypothesis falls; and, unless another one creates reasonable doubt, the defendant is guilty. State v. Captville, 448 So.2d 676 (La.1984).

“A factfinder’s credibility decision should not be disturbed unless it is clearly contrary to the evidence.” State v. McMillian, 2010-0812, p. 6 (La.App. 4 Cir. 5/18/11), 65 So.3d 801, 805 (citations omitted).

In addition, “[a]s a general matter, when the key issue is the defendant’s identity as the perpetrator, rather than whether the crime was committed, the state is required to negate any reasonable probability of misidentification.” State v. Neal, 2000-0674, p. 11 (La.6/29/01), 796 So.2d 649, 658. A positive identification by only one witness is sufficient to support a conviction. Id. The reviewing court must examine the reliability of an identification according to the test set out in Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 |fl(1977): (1) the opportunity of the witness to view the assailant at the time of the crime; (2) the witness’ degree of attention; (3) the accuracy of the witness’ prior description of the assailant; (4) the level of certainty demonstrated by the witness; and (5) the length of time between the crime and the confrontation. State v. Jones, p. 7, 2010-0018 (La.App. 4 Cir. 11/10/10), 51 So.3d 827, 832.

In the present case, there was sufficient evidence for the jury to find that Haynes was the person who shot and killed Jean-marie. Ranz Jefferson testified that Haynes admitted that he had killed Jean-marie for stealing his bicycle. Jefferson identified Jeanmarie in photographic lineup and at trial. Albert Davis also identified Haynes as the person he initially saw walking and then riding a bicycle in the area at the time of the shooting. Davis testified that Haynes stated that he was going to kill whoever stole his bicycle. Immediately after the shooting, Davis saw Haynes speedily leaving the scene and heard Haynes say that he had said that he was going to kill the person who stole his bicycle. Davis identified Haynes from the still shot of the surveillance video from the grocery store. Walker and Broussard both testified that the person in the still video shot was the person who stopped them as they left the grocery and who they later saw in the neighborhood looking for his bicycle.

Davis’s testimony establishes that he had sufficient time to observe Haynes, as Davis stated that Haynes was in the neighborhood for a while, first looking for his bicycle and then looking for Jeanmarie. Davis also testified that he saw Haynes immediately after the shooting as Haynes passed by on his bicycle. Davis also positively identified the defendant in the still video shot and at trial. Likewise, Walker and Broussard’s testimony reflects that both had an encounter with Haynes Imprior to the shooting and saw him riding in the neighborhood for several minutes prior the shooting.

The testimony provided by the witnesses was sufficient for the jui’y to conclude, beyond a reasonable doubt, that Haynes was the person who shot and killed Jean-marie. This assignment is without merit.

In the second assignment of error, Haynes suggests that the trial court abused its discretion when it overruled his objections to the State’s improper statements during rebuttal argument. Haynes contends that the prosecutor made improper comments about the likelihood that he would threaten or harm the witnesses who identified him if he was found not guilty. Haynes objected to these statements, and the trial court overruled the objections. Haynes then requested a mistrial, which the trial court denied.

During the defense’s closing argument, Haynes’s counsel questioned the identifications made by the witnesses and specifically noted that the State did not have Walker and Broussard identify Haynes during trial. Defense counsel suggested that Jefferson was lying, and the other witnesses, either intentionally or accidently, incorrectly identified Haynes as the person riding the bicycle in the neighborhood.

During rebuttal argument, the prosecutor made the following remarks to which defense counsel objected:

There’s no doubt, ladies and gentlemen, that Frank Haynes murdered Barry Jeanmarie that night over a bicycle. And it’s sad that that happens around here. But luckily we have witnesses that are strong enough to come in here and tell you what they saw. They honestly tell you what they saw. If they can’t say for certain that that’s him, they say honest I can’t. But I know what I saw and I know what I heard. I know he was that guy. I know the shooter is this guy. I know this guy is the guy who threw my father down on the bicycle. I’m going to tell you what I know because I’m going to tell you the _|_ytruth. There are no lies, there are no stories bing (sic) concocted. Four brave men came in here and entrusted their story of what happened that night to you. That is scary. Like I said, if you go out tonight, they’re probably sitting on that wood. And you better believe that if you let him out, he’s going back to that neighborhood.
MR. BELJEAN: Objection, Your Hon- or.
THE COURT: Overruled.
BY MR. HUFFT: His family is here, he’s here. Those men are entrusting you, the State has presented its case to you.
MR. BELJEAN: Objection, Your Hon- or. This is far beyond—
THE COURT: Overruled.

The defendant subsequently sought a mistrial, which the trial court denied.

MR. BELJEAN: Judge, I did object during Mr. Hufft’s rebuttal closing. At this time I’m going to make a motion for mistrial. Mr. Hufft said to the jury that if the jury lets Mr. Haynes out of jail, in other words if they find him not guilty, that he will return to the area and kill the witnesses.

THE COURT: No, he didn’t say that.

MR. BELJEAN: He did, Judge.

THE COURT: No, he didn’t. He said multiple things. He said he would return to the area. He said that if you let him out, he didn’t say out of jail, he said let him out. I was paying attention. He may have — that may have been the reference to some extent that he was trying to make that if you let him out, something bad may happen again. But he did not specifically say that if you let him out, that he’s going to go do something to the witnesses. He did not specifically state that.

MR. BELJEAN: Nonetheless, Judge. That is the absolute only insinuation that the Jury could have got (sic). Closing arguments are not to frighten the jury and scare the jury. Closing arguments, as the court instructed, are to present for the jury their consideration and their contention about what the evidence has shown or not shown.

THE COURT: I agree.

MR. BEL JEAN: About what the evidence showed or not showed, reflected in that statement that was a statement that frightened the jury, that gave them to deliberate based on fear and fashion, which the Court would then instruct that they’re not to do. It was improper. It was unreasonable and it is basis for a mistrial.

I12THE COURT: Motion for mistrial denied.

The scope of closing argument “shall be confined to evidence admitted, to the lack of evidence, to conclusions of fact that the state or defendant may draw therefrom, and to the law applicable to the case. The argument shall not appeal to prejudice. The state’s rebuttal shall be confined to answering the argument of the defendant.” La.C.Cr.P. art. 774. Prosecutors may not resort to personal experience or turn argument into a plebiscite on crime. State v. Williams, 96-1023, p. 15 (La.1/21/98), 708 So.2d 703, 716. However, prosecutors have wide latitude in choosing closing argument tactics. State v. Casey, 99-0023, p. 17 (La.1/26/00), 775 So.2d 1022, 1036, cert, denied, Casey v. Louisiana, 531 U.S. 840, 121 S.Ct. 104, 148 L.Ed.2d 62 (2000), citing State v. Martin, 539 So.2d 1235, 1240 (La.1989) (closing argument that referred to “smoke screen” tactics and defense as “commie pinkos” was inarticulate but not improper). Further, the trial judge has broad discretion in controlling the scope of closing arguments. Id. Even where the prosecutor’s statements are improper, credit should be accorded to the good sense and fair-mindedness of the jurors who have heard the evidence. State v. Ricard, 98-2278, p. 4 (La.App. 4 Cir. 1/19/00), 751 So.2d 393, 396. Even if the prosecutor exceeds the bounds of proper argument, a reviewing court will not reverse a conviction unless “thoroughly convinced” that the argument influenced the jury and contributed to the verdict. State v. Huckabay, 2000-1082, p. 30 (La.App. 4 Cir. 2/6/02), 809 So.2d 1093,1110. See also State v. Draughn, 2005-1825 (La.1/17/07), 950 So.2d 583. As the Court noted in Draughn:

Mistrial is a drastic remedy, and the determination of whether prejudice to the defendant has resulted from the prosecutor’s comments lies in the sound discretion of the trial judge. State v. Leonard, 2005-1382, p. 11 (La.6/16/06), 932 So.2d 660, 667. 11sMoreover, a trial judge has broad discretion in controlling the scope of closing argument. State v. Prestridge, 399 So.2d 564, 580 (La.1981).

Draughn, 2005-1825, p. 44, 950 So.2d at 614.

In State v. Jones, 2010-0018, supra, 51 So.3d 827, the defendant argued that the prosecutor made an improper comment during rebuttal when the prosecutor made a statement that a witness, Rasul, testified on behalf of the defendant because of Ra-sul’s fear of the defendant. The Court noted that defense counsel discussed Ra-sul’s testimony that exculpated the defendant. Defense counsel stated that Rasul was on probation for a cocaine conviction, and that Rasul’s probation could be revoked if the prosecution were to charge him with perjury. Defense counsel then suggested that Rasul had nothing to gain by testifying on behalf of the defendant. Defense counsel continued:

He really didn’t owe this man anything. If anything, that if he was scared that the man actually was the one that was doing it, he wouldn’t show up. He would definitely go to jail, if he did it. But he said this isn’t the man.
During rebuttal, the prosecutor responded:
Let’s talk about [Mr. Rasul’s testimony] a little bit. Mr. Rasul admits that he still lives in the same neighborhood. He stays in the same neighborhood. We can certainly understand why he would come into court today and say that’s not him. That makes sense, and the police officer told you in his testimony that he was scared. He was scared at first to identify him. He wasn’t hesitant. There was no doubt in his mind that he was scared. And we can understand that. And we can certainly understand why he would come in here, in court today while he lives on the street in that neighborhood and testify for this man, his dealer. There are several reasons. We talked about those in voir dire, too ... What is he afraid of? Retaliation. Isn’t it reasonable to understand why he might come in here and change his mind today? And let’s think about it. Moments after the incident, within moments he says that’s the guy, and we talked about that in voir dire. If somebody said, well, if that’s when you’re not thinking about the consequences is your reaction [sic]. He’s already been busted. He’s admitted it. He’s got the rock. He admits he bought it. He says, that’s the guy. Years later, he comes to court after thinking about that, and after thinking about the consequences of his actions—

| uId. at 10-11, 51 So.3d at 833-834. Upon review, this Court held that the prosecutor’s comment was “an arguable interpretation of the testimony adduced at trial.” Id. at 14, 51 So.3d at 835.

In the present case, the prosecutor’s rebuttal remarks are a response to defense counsel’s arguments questioning the credibility of the witnesses. However, the prosecutor’s statement about Haynes’s returning to the neighborhood could be interpreted as suggesting that if Haynes is released, he will return to the neighborhood to seek out the witnesses.

While the statement may be improper argument, given the overwhelming evidence pointing to Haynes as the perpetrator, we cannot say the argument influenced or contributed to the jury’s verdict. As stated above, Haynes told Jefferson that he committed the crime, shooting Je-anmarie four to five times. Dr. Huber confirmed that Jeanmarie was shot five times. Jefferson would not have known-that the victim was shot five times if Haynes had not admitted the crime to him. Additionally, Davis positively identified Haynes as the person whom he saw walking and then riding a bicycle in the neighborhood immediately prior the shooting. Davis testified that he heard Haynes say that he killed the person who took his bicycle. Walker and Broussard also positively identified that the person in the still video shot was the person who came after them in search of his bicycle. Both men testified that they saw that person walking and then riding a bicycle in the neighborhood. They also stated that they heard the person say that he was going to kill the person who took his bicycle. Walker and Broussard testified that they knew Jean-marie had taken the defendant’s bicycle.

The assignment of error is without merit.

| ^Accordingly, for the reasons stated herein, the defendant’s conviction and sentence are affirmed.

AFFIRMED

      . See La. R.S. 14:30.1


text:
    STATE of Louisiana v. Eric JONES.
    No. 2013-KA-1216.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 7, 2014.
    Leon A. Cannizzaro, Jr., District Attorney of Orleans Parish, J. Bryant Clark, Jr., Assistant District Attorney of Orleans Parish, New Orleans, LA, for State of Louisiana.

      James A. Williams, Roger W. Jordan, Jr., Law Offices of James A. Williams, LLC, Gretna, LA, for Defendant/Appellee.
    (Court composed of Chief Judge JAMES F. McKAY III, Judge DANIEL L. DYSART, Judge MADELEINE M. LANDRIEU).
   JAMES F. McKAY III, Chief Judge.

liThe State of Louisiana appeals the trial court’s judgment granting a motion to quash the bill of information in favor of Eric Jones (“Defendant”). For the reasons set forth below, we affirm.

PROCEDURAL HISTORY

The underlying facts of this case are not pertinent to the appeal. The issues are purely procedural in nature.

Defendant was charged by bill of information on December 22, 2005 with one count of possession of crack cocaine, in violation of La. R.S. 40:967(C). Defendant appeared for arraignment on May 11, 2006 and entered a plea of not guilty. On the same date, the trial court scheduled a pre-trial hearing for June 23, 2006, to determine counsel and other preliminary matters. Defendant was notified of the hearing date in open court. However, Defendant failed, to appear on .June 23, 2006, and the trial court issued an alias capias for his arrest.

12Defendant subsequently appeared without counsel before the trial court on August 11, 2006. No new date was given to Defendant at that time; the trial court simply reinstated the original bond and recalled the alias capias.

On January 5, 2011, upon the State’s request, the trial court set a pre-trial hearing for January 8, 2011. From this point until the motion to quash was filed on November 30, 2012, Defendant intermittently appeared and failed to appear for court proceedings.

After new defense counsel enrolled in June of 2012, Defendant filed the motion to quash on November 30, 2012, which is the subject to the instant appeal, alleging that the time period for which the State had to commence trial had expired. In the motion, Defendant stated that he was incarcerated on June 14, 2007, and subsequently sentenced to one year at hard labor at the Louisiana | ^Department of Corrections. The motion also included an “affidavit of incarceration,” executed by Jefferson Parish Correction Center employee, which stated that Defendant was incarcerated in the custody of Jefferson Parish Correction Center of the Jefferson Parish Sheriffs Office from June 14, 2007, until June 17, 2007, and then transferred to LaSalle Correction Center. The affidavit does not, however, provide that the dates Defendant was allegedly in the custody of LaSalle Correction Center.

The motion to quash came before the trial court on January 11, 2013. At the hearing, Defendant mistakenly claimed that he was in custody of Jefferson Parish Correctional Center at the time he was supposed to appear at the June 23, 2006 hearing. Defendant further argued that because he was in custody of the Jefferson Parish Correctional Center, that State had the affirmative duty to locate him. The State did not dispute dates as asserted by Defendant at the hearing. The trial court subsequently granted Defendant’s motion to quash. This appeal followed.

STANDARD OF REVIEW

We generally review trial court rulings on motions to quash under an abuse-of-discretion standard. State v. Love, 2000-3347, pp. 9-10 (La.5/23/03), 847 So.2d 1198, 1206; State v. Jones, 2012-0565, p. 5 (La.App. 4 Cir. 4/24/13), 115 So.3d 643, 647. We specifically review a ruling on a motion to quash on the grounds that the time limitation or prescriptive period for commencement of trial has expired | ¿under that same standard. State v. Ramirez, 2007-652, p. 4 (La.App. 4 Cir. 1/9/08), 976 So.2d 204, 207.

DISCUSSION

As its sole assignment of error, the State contends that the trial court abused its discretion by granting Defendant’s motion to quash, where the time limitations for commencing trial were interrupted due to the numerous times Defendant failed to appear in court.

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. La.C.Cr.P. art. 532(7). La.C.Cr.P. art. 578 mandates the time limits on the commencement of trials depending upon the classification of the offense charged. It provides, in relevant part:

A. Except as otherwise provided in this Chapter, no trial shall be commenced nor any bail obligation be enforceable:
(2) In other felony cases after two years from the date of institution of the prosecution; and
B. The offense charged shall determine the applicable limitation.

Possession of cocaine is punishable by imprisonment with or without hard labor for not more than five years; it is a non-capital felony. La. R.S. 40:967(0(2); La. C.Cr.P. art. 933(3). Thus, as a general rule, trial for the instant offense must have commenced within two years of the institution of prosecution. La.C.Cr.P. art. 578(A)(2). Because the prosecution was instituted against Defendant on December 22, 2005, Defendant should have been brought to trial no later than December 22, 2007.

| sOnce it is established that the State has failed to commence trial within the time periods specified by La. C.C.P. art. 578, the State bears a heavy burden to demonstrate that either an interruption or a suspension of the time limit tolled prescription. State v. Morris, 99-3235, p. 1 (La.2/18/00), 755 So.2d 205, 205 (per cu-riam)-, State v. Joseph, 93-2734, p. 1 (La.6/3/94), 637 So.2d 1032, 1032; State v. Bell, 2002-2349, p. 9 (La.App. 4 Cir. 8/6/03), 854 So.2d 429, 434; State v. Franklin, 2010-0792, p. 4 (La.App. 4 Cir. 4/6/11), 62 So.3d 817, 819. La.C.Cr.P. art. 579 governs the interruption of time limitations for commencing trial, and provides:

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 in the 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.

Ordinarily, to satisfy its burden in establishing that an interruption or suspension of the prescriptive period has occurred, the State “must exercise due diligence in discovering the whereabouts of the defendant as well as in taking appropriate steps to secure his presence for trial once it has found him.” State v. Chad-bourne, 98-1998, p. 1 (La.1/8/99), 728 So.2d 832, 832 (per curiam). However, the Louisiana Supreme Court in State v. Roman 2007-2140, p. 6 (La.7/1/08), 985 So.2d 722, 726, firmly held that “La.C.Cr.P. art. 579(A)(3) does not 1 simpóse on the State the affirmative duty to search for a defendant who has failed to appear for trial after receiving actual notice.”

The State argues that Defendant’s failure to appear in court for the June 23, 2006 hearing date after receiving notice of the date in open court interrupted the time period to commence trial.

The State is correct in that Louisiana jurisprudence has found that notice in open court is sufficient to establish actual notice under La.C.Cr.P. art. 579(A)(3). In State v. Green, 2011-0094, p. 5 (LaApp. 4 Cir. 8/31/11), 72 So.3d 949, 952, the Fourth Circuit held a minute entry demonstrating that a defendant had appeared in open court and received notice of a rescheduled hearing date was sufficient proof of actual notice and thus found that the defendant’s subsequent absence from court after receiving notice interrupted prescription. Id.

In the present case, like in Green, the minute entry of May 11, 2006 provides that Defendant was present at the arraignment and that he was “notified in court” of the June 23, 2006 hearing date. Thus, the failure of Defendant to appear for the proceeding on June 23, 2006 subsequent to receiving notice of the scheduled hearing in open court interrupted the two-year period to bring Defendant to trial. See also, State v. Williams, 2011-1231, p. 5 (La.App. 4 Cir. 5/23/12), 95 So.3d 554, 557 (holding that a subpoena was not required to be served on a defendant to provide actual notice of bond hearing date, for purposes of determining whether defendant’s failure to appear at that hearing interrupted running of statutory period, as defendant and his counsel received notice at arraignment of a bond hearing 17date); State v. Evans, 2008-0417, pp. 7-8 (La.App. 1 Cir. 10/31/08), 998 So.2d 197, 202 (finding that period of prescription for prosecuting a defendant who failed to appear in court for his second trial on drug offense, after he received actual notice to appear in open court, was interrupted by defendant’s nonappearance); but see, State v. Andres, 2011-1341, pp. 5-6 (La.App. 4 Cir. 9/19/12), 100 So.3d 953, 956-957 (finding the State failed to meet its burden of proving that the time limit to prosecute the defendant had been interrupted where the minute entry, upon which the State relied on to prove actual notice, only provided “Send notices. Place the defendant on the jail list”).

However, La.C.Cr.P. art. 579(B) provides “[t]he periods of limitation established by Article 578 shall commence to run anew from the date the cause of interruption no longer exists.” Here, as noted above, the interruption began on June 23, 2006, when Defendant failed to appear in court after receiving actual notice on May 11, 2006. The record provides, however, that Defendant subsequently appeared before the trial court on August 11, 2006. The minute entry of August 11, 2006 does not indicate that another date was set for which Defendant had to appear. It provides:

The defendant, Eric Jones, appeared without counsel in open court.
The court reinstated the original bond.
The court recalled the alias capias.

Pursuant to the provisions of La.C.Cr.P. art. 579(B), once Defendant appeared on August 11, 2006 the cause of interruption ceased, and the two-year time period began to run anew. See, Romar, 2007-2140, pp. 6-7, 985 So.2d at 726-727 (finding that the limitation for prosecuting a defendant who failed to appear after receiving notice of trial date ran anew when the defendant was |sarrested and appeared in court); Evans, 2008-0417, p. 7, 998 So.2d at 202 (holding that the prescription period for prosecuting a defendant who failed to appear after notice began to run anew when defendant appeared in court approximately two years later); State v. Tillman, 43,569, p. 8 (La.App. 2 Cir. 10/22/08), 997 So.2d 144, 148 (noting that once the defendant failed to appear for the trial court, the time limitation did not run anew until he was arrested and appeared before the court to dispose of the matter). The State, therefore, had until August 11, 2008, to commence trial. However, nothing was done to move the matter forward until January 5, 2011, when the State requested the trial court to set a pre-trial hearing for January 18, 2011. Thus, because more than two years had passed between Defendant’s reappearance on August 11, 2006, and the State’s recommencement of proceedings in January 2011, the time period to bring Defendant to trial has prescribed. The State has failed to point to any events subsequent to the August 11, 2006 appearance of Defendant that would cause an interruption or suspension to the time limitations imposed by La. C.C.P. art. 578. Accordingly, it was not an abuse of discretion to grant the motion to quash.

The State also generally claims that the trial court erred in granting the motion to quash because “the time limitations for commencing trial were interrupted due to the numerous times ... [Defendant failed to appear in court.” There are minute entries from 2011 and 2012, indicating that Defendant did not appear for several court hearings after notice was allegedly sent to Defendant. However, these non-appearances occurred after the time limitation to bring the matter to trial had expired in August 2008, and thus have no bearing on the running of the already prescribed period to commence trial. Therefore, the State’s argument in this regard lacks merit.

| «CONCLUSION

Although the time period for bringing Defendant to trial was interrupted on June 23, 2006, when Defendant failed to appear for a hearing after receiving notice thereof in open court, the prescriptive period began to run anew when Defendant appeared in court on August 11, 2006. At that point, the State had two years from that date, or until August 11, 2008, to commence trial. The State did not act until January 2011. Thus, the trial court did not abuse its discretion in granting Defendant’s motion to quash. We affirm.

AFFIRMED

      . The docket master indicates that áfter the trial court issued an alias capias “with no bond” and continued the matter without date, defense counsel appeared without Defendant and moved to continue the hearing, which was reset for July 28, 2006. The minute entry dated July 28, 2006, provides that Defendant failed to appear.

      . Defendant did hot appear for the January 8, 2011 pre-trial hearing, and the matter was reset for March 2, 2011. On February 10, 2011, Defendant filed a motion to quash the bill of information on the grounds that the time limitations established by La.C.Cr.P. art. 578 had prescribed and that his right to speedy trial granted by both the state and federal constitutions had been violated. Defense counsel appeared for hearing on motion to quash on March 2, 2011 and waived the appearance of Defendant. The trial court granted a joint motion to continue and reset the motion to quash for March 17, 2011. When Defendant failed to appear on March 17, 2011, the trial court issued another alias capias for Defendant’s arrest for $5,000.00 and continued the motion hearing without date. The February 10, 2011 motion to quash filed by Defendant was never reset for hearing.
      Several months later, it appears that Defendant was arrested as he posted bond on June 2, 2011, in the amount of $5,000.00. At the State’s request on August 11, 2011, the trial court again set a pre-trial hearing for August 30, 2011. On August 30, 2011, Defendant appeared without counsel, at which point, the trial court appointed a public defender to represent Defendant and scheduled a motion hearing for September 22, 2011. Defendant did not appear at the September 22, 2011 hearing, and the trial court issued another alias capias. However, when Defendant appeared without counsel the following day, on September 23, the trial court vacated the ca-pias, and set motions for October 21, 2011. On October 21, 2011, the trial court denied a motion to suppress filed by Defendant and found probable cause to substantiate the charges. The case was then set for trial on December 8, 2011. When Defendant failed to appear for trial, the trial court again issued an alias capias and set a bond forfeiture hearing for January 6, 2012. Defendant also did not appear for the bond forfeiture hearing and as result on January 6, 2012, the trial court executed a judgment of bond forfeiture. On January 17, 2012, the deputy clerk mailed notice of the bond forfeiture by certified mail to Defendant, his bond agent, and his surety. The record does not reflect whether the notice of forfeiture was actually received.

      . The motion to quash also contained the docket master of the Criminal District Court proceedings as well as the minute entry of 24th Judicial District Court, which showed that on June 14, 2007, Defendant pled guilty to second offense possession of marijuana in exchange for one year at hard labor.

      . The affidavit of incarceration actually provides that Defendant was incarcerated in June of 2007, approximately a year after Defendant failed to appear on June 23, 2006.

      . The State initially refers to "numerous” non-appearances of Defendant that interrupt the prescriptive period to commence trial; however, in its argument the State only addresses Defendant's failure to appear for the June 23, 2006 hearing.

      . Defendant does not dispute that his failure to appear on June 23, 2006 interrupted prescription.