text:
    STATE of Louisiana v. Joey GRANGER.
    No. 08-1479.
    Court of Appeal of Louisiana, Third Circuit.
    June 3, 2009.

      John F. DeRosier, District Attorney, Carla S. Sigler, Assistant District Attorney, Lake Charles, LA, for Appellee, State of Louisiana.
    Mark O. Foster, Louisiana Appellate Project, Natchitoches, LA, for Defendant/Appellant, Joey Granger.
    Court composed of MARC T. AMY, ELIZABETH A. PICKETT and J. DAVID PAINTER, Judges.
   AMY, Judge.

LThe defendant pled guilty to theft over $500.00, a violation of La.R.S. 14:67. He was sentenced to serve six years at hard labor with the sentence to run consecutively with-the sentences imposed on five other convictions. The defendant appeals, asserting that the sentence is excessive and that the trial court erred in ordering him to pay restitution to the victims of the crimes after he was sentenced. We affirm the defendant’s sentence, but vacate the Judgment of Restitution. We remand for further proceedings.

Factual and Procedural Background

This matter is one of six companion cases. In this case, the defendant, Joey Granger, entered a guilty plea to one count of theft over $500 stemming from a August 8, 2002 offense. The State alleged that, on that date, the defendant entered into a contract to perform certain work. Although the victim paid the defendant $5,000, he did not perform the work. The defendant also entered guilty pleas for five other offenses. The trial court ordered a presentence investigation report.

On March 14, 2008, the trial court sentenced the defendant to six years at hard labor with the sentence to run consecutively with the sentences imposed for the other convictions.

Thereafter, the defendant filed a Motion to Amend or Modify Sentence or Alternatively Motion to Reconsider Sentence. The trial court denied the motion on April 14, 2008. Defense counsel later proffered evidence and testimony with regard to the denial of the Motion to Reconsider Sentence.

|2On June 4, 2008, the trial court issued a “Judgment of Restitution,” ordering the defendant to pay restitution to the victims of the crimes underlying the six convictions.

The defendant appeals, asserting that the sentences imposed are excessive and that the trial court erred in ordering restitution after sentencing the defendant.

Discussion

Errors Patent

Pursuant to La.Code Crim.P. art. 920, all appeals are reviewed for errors patent on the face of the record. After reviewing the record, we find no errors patent requiring correction.

Excessive Sentence

The defendant, on appeal, contends that his sentence is excessive, particularly because the six-year sentence was ordered to run consecutively to the six-year sentences imposed on the other five charges to which he also pled guilty. Relying on La.Code Crim.P. art. 883, he asserts that “all six cases clearly constituted a common |sscheme or plan to the extent that the state consolidated all six for an initial arraignment, a guilty plea and sentencing.” Further, the defendant argues that the trial court’s reasons for ordering that the sentences be served consecutively do not “articulate a basis for overriding the presumption of concurrent sentences.”

The defendant did not specifically raise the error of consecutive sentences in his motion to reconsider sentence filed in the trial court. Accordingly, the sentence will be reviewed under a bare excessiveness claim. See La.Code Crim. P. art. 881.1 and State v. Clark, 06-508 (La.App. 3 Cir. 9/27/06), 940 So.2d 799, writ denied, 06-2857 (La.9/21/07), 964 So.2d 324.

With regard to excessive sentence claims, this court stated:

La. Const. art. I, § 20 guarantees that, “[n]o law shall subject any person to cruel or unusual punishment.” To constitute an excessive sentence, the reviewing court must find the penalty so grossly disproportionate to the severity of the crime as to shock our sense of justice or that the sentence makes no measurable contribution to acceptable penal goals and is, therefore, nothing more than a needless imposition of pain and suffering. State v. Campbell, 404 So.2d 1205 (La.1981). The trial court has wide discretion in the imposition of sentence within the statutory limits and such sentence shall not be set aside as excessive absent a manifest abuse of discretion. State v. Etienne, 99-192 (La.App. 3 Cir. 10/13/99); 746 So.2d 124, writ denied, 00-0165 (La.6/30/00); 765 So.2d 1067. The relevant question is whether the trial court abused its broad sentencing discretion, not whether another sentence might have been more appropriate. State v. Cook, 95-2784 (La.5/31/96); 674 So.2d 957, cert. denied, 519 U.S. 1043, 117 S.Ct. 615, 136 L.Ed.2d 539 (1996).

|4 State v. Barling, 00-1241, 00-1591, p. 12 (La.App. 3 Cir. 1/31/01), 779 So.2d 1035, 1042-43, writ denied, 01-838 (La.2/1/02), 808 So.2d 331.

The trial court, at the sentencing hearing, stated:

At this time the Court is called upon to go through Article 894.1 with regard to the sentencing guidelines. 894.1 indicates that there should be a sentence of imprisonment if any of the following occurs.
Is there an undue risk during a period of suspended sentence or probation that the defendant would commit another offense? It’s noted that the defendant is in fact a third time felony offender based on his classification from the Department of Corrections. Since he has been in his late twenties he has been constantly in trouble with the law, with all of these matters apparently involved with some form or allegation of taking of which there has at least been two prior felony convictions. The Court would answer that in the affirmative.
Is the defendant in need of correctional treatment or a custodial environment that can be provided most effectively by his commitment to an institution? It is apparent that as a third time offender that the defendant at this point has not learned to cease and desist and, in fact, there are six individual counts before the Court at this point and in comparing that with the past offenses the Court is also answering that in the affirmative; that a commitment to an institution is appropriate, as well as the defendant’s failure to adhere to the request to appear in Court on the number of bench warrants that his record also demonstrates.
Would any lessor [sic] sentence deprecate the seriousness of the offense? Obviously at some point the opportunities for probation based on the statutory guidelines indicating that he is not eligible as a third time offender must indicate the State’s preference to some form of incarceration and further to continue to allow that defendant to be on the street. He’s basically a hindrance and hazard to the public and would deprecate the seriousness of this offense.
In looking at aggravating circumstances the Court notes the following: The offender offered or has been offered or has given or received something of value for the commission of these offenses by the very nature. The Court finds that to be aggravating.
The offender has used his position or status to facilitate the commission of these offenses. The victims in this case were vulnerable. They trusted the defendant, many of them in times of need following the hurricane and needing help to assist them in other repairs and items. The defendant has used his position and ability to be somewhat of a craftsman as far as floor coverings and such to gain their trust and then |sonce he’s received funds then basically disappears with those monies and not provide the services that he previously rendered. In addition, he has submitted a number of worthless checks in an attempt to obtain something for nothing.
Other aggravating [sic], it is noted that these offenses have resulted in significant permanent injury or economic losses to the victims. In reviewing the pre-sentence investigation there is an aggregate of $46,622.76 from a number of victims that was determined by the officer with Probation and Parole and that is a significant economic expense, as well as the inability then to trust other individuals could cause some permanent detriment to the victims in this matter. The Court would find that aggravating.
The offenses involve multiple victims and incidences for which separate sentences have not been imposed. While the matters before the Court include six separate felony offenses, it is noted that there were a number of other offenses pursuant to that guilty plea that were in fact dismissed and the Court is not considering those, however it is noted that multiple victims and incidences did exist for aggravating purposes.
The offender was persistently involved in similar offenses not already considered as a criminal history or part of a multiple offender adjudication. He’s not been addressed as a multiple offender, however in a review of his history, while there’s not been convictions, the Court cannot ignore the number of allegations that have been brought against the defendant for the past fifteen, twenty years. The Court also finds that this offense was a major economic offense.
Other aggravating circumstances, specifically the defendant absconding from his sentencing hearing when given the opportunity to remain free and having received notice in open court made the decision to try and avoid the entirety of his sentence or repayment to society and by avoiding that proceeding not only delayed the Court’s business, but gave an indication as to his true intent, whether he was remorseful and willing to accept punishment for the actions that he has been involved with.
The defendant had made arguments that he would compensate or would compensate [sic] the victims, but at this time the Court’s received no proof that that in fact has been done and it is the Court’s opinion that those promises and now looking at the track record were merely an effort to delay the ultimate sentencing for the matters before the Court. That would be aggravating more than mitigating.
The defendant has no prior history of delinquency or criminal activity and has led a law abiding life for a substantial period of his life. That is much more aggravating than mitigating.
| nThe defendant’s criminal conduct was the result of circumstances unlikely to recur. More aggravating than mitigating.
The defendant is particularly likely to respond affirmatively to probationary treatment. Again, he’s had those opportunities in the past and failed to take advantage of them. I find that to be more aggravating than mitigating.
The Court, if it did not mention one of the aggravating or mitigating circumstances specifically, they were considered and, if not mentioned, deemed insignificant or inapplicable to the incident [sic] offense.
At this time the defendant has pleaded guilty to docket 20582-02, felony worthless checks in an amount greater than $500; docket 3827-03, theft greater than $500, noting that that was one count with multiple victims inclusive; docket 28024-02, theft greater than $500; docket 20576-03, theft greater than $500; docket 4995-02, theft by fraud; and docket 28023-02, theft greater than $500.
At this time the Court hereby sentences the defendant, Mr. Joseph Alford Granger, to serve the sum of six years on each of those dockets. That term will run consecutive with one another and the Court at this time references Code Article 883 of the Code of Criminal Procedure. As previously indicated the Court is of the opinion it needs to annunciate particular justification if the sentence should be established as consecutive. The basis of that, the Court finds that the defendant has used his position to prey on societal needs. Each of these victims was an individual that had unique issues, losses, for which the defendant took advantage of. They occurred on different times, different physical locations, and all with the defendant’s intent to take from that specific victim or the matters associated with those specific dockets. Some were property takings, some were money takings for equipment rental, repair. Some were monies that were going to be received in advance to repair, such as remodeling or installing flooring, and many of the others were significant issuance of worthless checks to vendors or creditors that the defendant has pled guilty to knowing that there were no funds to pay for those.
The defendant will serve a total of 36 years with the Department of Corrections as a result of that.

The defendant in this case committed separate crimes, with separate victims, locations, and dates. Pursuant to La.Code Crim. P. art. 883, the sentence was to be 17served consecutively, unless the court expressly directed that it be served concurrently. Accordingly, the trial court did not err in ordering that the six sentences run consecutively.

Regarding the determination of whether the penalty imposed shocks one’s sense of justice, we note that the defendant received a mid-range sentence. Louisiana Revised Statutes 14:67(B)(1) instructs that the penalty for theft over $500.00 includes imprisonment of up to ten years with or without hard labor, or a fine of up to three thousand dollars, or both. The defendant was sentenced to six years, a mid-range sentence. As such, this assignment of error lacks merit.

Restitution

In his second assignment of error, the defendant asserts that the trial court erred in ordering that he pay restitution two months after a hard labor sentence was imposed. He contends that, pursuant to La.Code Crim.P. art. 916, the trial court no longer had jurisdiction to issue such a judgment. Secondly, the defendant argues that “restitution is generally limited by statute to probated sentences.” Finally, he questions whether it was appropriate to impose restitution without a hearing being conducted.

At the sentencing hearing, the defendant’s attorney acknowledged, without “objections or additions” the content of the presentence investigation report, including the amounts of restitution owed to the victims. The trial court stated at the sentencing hearing:

I indicate to the State that they may seek or file a civil judgment in conformity with the pre-sentence investigation as to the respective victims and restitution less any credits that may have been received, Mrs. Wilson, for those respective amounts and they can remain in the civil records in the hopes of some time [sic] collecting those amounts.

|RAfter the defendant’s Motion to Reconsider Sentence was denied, the defendant filed a motion for appeal. Said motion was granted on May 14, 2008. On June 4, 2008, without a hearing, the trial court issued a judgment, ordering that the specified amounts of restitution be paid to the eighteen victims listed therein.

Suspension of a defendant’s sentence or placing a defendant on probation is not a prerequisite to imposing restitution. La. Code Crim.P. art. 883.2. At the time this offense was committed, La.Code Crim.P. art. 883.2 provided:

In all cases in which the court finds an actual pecuniary loss to a victim, or in any case where the court finds that costs have been incurred by the victim in connection with a criminal prosecution, the trial court shall order the defendant to provide restitution to the victim as a part of any sentence that the court shall impose.

(Emphasis added).

Furthermore, La. Code Crim.P. art. 886(A) provides, in pertinent part:

In the event of nonpayment ... of restitution to the victim, ... within sixty days after the sentence was imposed, and if no appeal is pending, the court which imposed the sentence may sign a judgment against the defendant in a sum equal to the fíne or restitution plus judicial interest to begin sixty days after the sentence was imposed plus all costs of the criminal proceeding and subsequent proceedings necessary to enforce the judgment in either civil or criminal court, or both. Collection of the judgment may be enforced in either criminal or civil court, or both, in the same manner as a money judgment in a civil case.

(Emphasis added).

Louisiana Code of Criminal Procedure Article 916 also provides in pertinent part:

The jurisdiction of the trial court is divested and that of the appellate court attaches upon the entering of the order of appeal. Thereafter, the trial court has no jurisdiction to take any action except as otherwise provided by law and to:
| ci(l) Extend the return day of the appeal, the time for filing assignments of error, or the time for filing per curiam comments in accordance with Articles 844 and 919.
(2) Correct an error or deficiency in the record.
(3) Correct an illegal sentence or take other appropriate action pursuant to a properly made or filed motion to reconsider sentence.
(4) Take all action concerning bail permitted by Title VIII.
(5) Furnish per curiam comments.
(6) Render an interlocutory order or a definitive judgment concerning a ministerial matter not in controversy on appeal.
(7) Impose the penalty provided by Article 844.
(8) Sentence the defendant pursuant to a conviction under the Habitual Offender Law as set forth in R.S. 15:529.1.

Thus, the trial court was divested of jurisdiction in this case at the time it entered the Judgment of Restitution. The judgment is therefore a nullity.

Also, in State v. Roberts, 08-1026 (La.App. 3 Cir. 3/4/09), 4 So.3d 1011, the trial court stated at sentencing that it was “ ‘also granting] Mr. Gary Celestine a judgment in the amount of $28,556.71 against Mr. Roberts.’ ” Id. at 1016. The defendant appealed, arguing that the trial court did not order restitution as part of his sentence pursuant to La.Code Crim.P. art. 883.2. This court, relying on La.Code Crim.P. art. 886, held:

Rather than making restitution to the victim a part of the Defendant’s sentence, the trial court ordered restitution in the form of a money judgment. The judgment was improper as Defendant had not been given sixty days to pay restitution. Accordingly, the judgment is vacated, and this matter is remanded for the imposition of restitution as part of Defendant’s sentence as contemplated by La.Code Crim.P. art. 883.2.

Id. at 1016.

bp As in Roberts, the trial court improperly imposed restitution via a civil judgment, rather than as a part of the defendant’s sentence pursuant to La.Code Crim.P. art. 883.2.

Further, the record does not indicate that the defendant was present when the Judgment of Restitution was issued. In State v. Thomas, 05-1051, p. 4 (La.App. 3 Cir. 3/1/06), 924 So.2d 1146, 1149, abrogated on other grounds by State v. Stevens, 06-818 (La.App. 3 Cir. 1/31/07), 949 So.2d 597, this court stated:

Louisiana Code of Criminal Procedure Article 835 provides for the Defendant’s presence when sentence is pronounced:
In felony cases the defendant shall always be present when sentence is pronounced.... If a sentence is improperly pronounced in the defendant’s absence, he shall be resen-tenced when his presence is secured.
The imposition of restitution is considered a part of the defendant’s sentence, for which the defendant must be present. State v. Fortier, 03-882 (La.App. 5 Cir. 11/25/03), 862 So.2d 170. See also State v. Boudreaux, 98-1932 (La.App. 3 Cir. 6/16/99), 741 So.2d 860.

Accordingly, the Judgment of Restitution is vacated, and the matter is remanded to the trial court for restitution to be imposed as part of the defendant’s sentence as contemplated by La.Code Crim.P. art. 883.2. See, e.g., Thomas, 924 So.2d 1146 and Roberts, 4 So.3d 1011.

DECREE

For the foregoing reasons, the defendant’s sentence is affirmed, but the Judgment of Restitution is vacated. The matter is remanded to the trial court for re-sentencing with regard to amounts owed for restitution, in accordance with this opinion.

SENTENCE AFFIRMED. JUDGMENT OF RESTITUTION VACATED. REMANDED.

      . For the factual backgrounds of the other five convictions, see the decisions in the companion cases also before this court on appeal: State v. Joseph A. Granger, 08-1477 (La.App. 3 Cir.6/3/09), 11 So.3d 649, 2009 WL 1531616; State v. Joseph “Joey" Alford Granger, 08-1478 (La.App. 3 Cir.6/3/09), 11 So.3d 1215, 2009 WL 1531622; State v. Joey Granger, 08-1480 (La.App. 3 Cir.6/3/09), 11 So.3d 658, 2009 WL 1531632; State v. Joseph A. Granger, Jr., 081481 (La.App. 3 Cir.6/3/09), 11 So.3d 683, 2009 WL 1531642; State v. Joseph A. Granger, 08-1482 (La.App. 3 Cir.6/3/09), 11 So.3d 675, 2009 WL 1531649.

      . Louisiana Code of Criminal Procedure Article 920 provides:
      Art. 920. Scope of appellate review
      The following matters and no others shall be considered on appeal:
      (1) An error designated in the assignment of errors; and
      (2) An error that is discoverable by a mere inspection of the pleadings and proceedings and without inspection of the evidence.

      . Louisiana Code of Criminal Procedure Article 883 provides:
      Art. 883. Concurrent and consecutive sentences
      If the defendant is convicted of two or more offenses based on the same act or transaction, or constituting parts of a common scheme or plan, the terms of imprisonment shall be served concurrently unless the court expressly directs that some or all be served consecutively. Other sentences of imprisonment shall be served consecutively unless the court expressly directs that some or all of them be served concurrently. In the case of the concurrent sentence, the judge shall specify, and the court minutes shall reflect, the date from which the sentences are to run concurrently.

      .Louisiana Code of Criminal Procedure Article 881.1 provides, in pertinent part:
      E. Failure to make or file a motion to reconsider sentence or to include a specific ground upon which a motion to reconsider sentence may be based, including a claim of excessiveness, shall preclude the state or the defendant from raising an objection to the sentence or from urging any ground not raised in the motion on appeal or review.


source: Caselaw Access Project

author: PAINTER, Judge.

license: Public Domain

text:
    CACV OF COLORADO, LLC v. Justin R. SPIEHLER, III and Candace Cullum Spiehler a/k/a Candace L. Gordon.
    No. 09-151.
    Court of Appeal of Louisiana, Third Circuit.
    June 3, 2009.
    Rehearing Denied July 8, 2009.

      D. Michael Dendy, New Orleans, LA, for Plaintiff-Appellant, CACV or Colorado, LLC.
    Ped C. Kay, III, Hal J. Broussard, Lafayette, LA, for Defendant-Appellee, Justin R. Spiehler, III.
    Candace Cullum Spiehler, Broussard, LA, In Proper Person.
    Court composed of MARC T. AMY, ELIZABETH A. PICKETT, and J. DAVID PAINTER, Judges.
   PAINTER, Judge.

11 Plaintiff, CACV of Colorado, LLC (CACV) appeals the judgment of the trial court dismissing its collection action against Candace Cullum Spiehler, pursuant to a motion for directed verdict.

FACTS

Candace Cullum Spiehler and Justin R. Spiehler, III were married in 1996 and divorced in 2002. Prior to their marriage, Mr. Spiehler had a First USA credit card. It was his recollection that he cancelled the card and that it might have been kept in a drawer somewhere. Mr. Spiehler further testified that at sometime between 1996 and 1998, Mrs. Spiehler found the card and had it reactivated. He only discovered the reactivation after Mrs. Spieh-ler lost her job, and the bill began coming to their home. At that point the balance was approximately $8,545.00 which Mr. Spiehler paid, including with the payment a letter notifying the credit card company that the card should be closed forever and stating that it should not, under any circumstances, be re-activated. However, at some point prior to the Spiehler’s divorce, Mrs. Spiehler re-activated the card. Mr. Spiehler testified that he did not discover that it had been reactivated until he was trying to obtain a loan, and a credit report showed that the card had been used and had an unpaid balance.

The indebtedness incurred in the use of that card was ultimately acquired by CACV, which filed this suit. At the trial of the matter, CACV introduced the testimony of Magic West, a representative of Collect America, of which CACV is a subsidiary, as well as an affidavit stating that CACV purchased the debt. CACV also presented a statement of the amount due on the account at the time it was purchased, |2a bill of sale that came with the account, and a credit card agreement from Bank One which incorporated the credit card agreement from First USA dated July 1998. After CACV submitted its case, Defendants moved for a directed verdict asserting that CACV had not sufficiently proven the amount of the debt. The court granted the motion and dismissed CACV s claims. CACV appeals the dismissal only as to Mrs. Spiehler.

DISCUSSION

CACV asserts on appeal that the trial court erred in granting the motion for directed verdict in that it produced sufficient evidence to constitute a prima facie case.

Plaintiff correctly notes that the courts of this state have treated suits to collect credit card debt as suits on open account. See Sears, Roebuck and Co. v. Dennies, 03-1160 (La.App. 5 Cir. 3/30/04), 870 So.2d 1080; Sears, Roebuck and Co. v. Richardson, 32,951 (La.App. 2 Cir. 4/5/00), 759 So.2d 190. Accordingly, we will apply the burden of proof for a suit on open account.

In order to prevail in a suit on an open account, the creditor must first prove the account by showing that the record of the account was kept in the course of business and by introducing evidence regarding its accuracy. Once a prima facie case has been established by the creditor, the burden shifts to the debtor to prove the inaccuracy of the account or to prove the debtor is entitled to certain credits. Jacobs Chiropractic Clinic v. Holloway, 589 So.2d 31 (La.App. 1 Cir.1991).

Metal Coatings, L.L.C. v. Petroquip Energy Services, L.P., 06-1118, p. 4 (La.App. 3 Cir. 11/21/07), 970 So.2d 695, 698.

In this case, there was no evidence regarding the accuracy of the account. CACV bought the indebtedness. No evidence was introduced regarding the purchases | ^underlying the debt, no receipts, invoices, billing statements, or statements of account were introduced to support the accuracy of the amount claimed. There was no way for the court to verify the accuracy of the amount claimed. At the close of Plaintiffs case, there was insufficient data to determine whether the amount claimed was accurate. Accordingly, the trial court correctly found that CACV failed to prove the account.

CONCLUSION

Finding no error in the determination of the trial court that CACV failed to prove a prima facie case, we affirm the trial court’s dismissal of the claim. Costs of this appeal are to be paid by CACV.

AFFIRMED.


author: AMY, Judge.

text:
    STATE of Louisiana v. Joseph A. GRANGER, Jr.
    No. 08-1482.
    Court of Appeal of Louisiana, Third Circuit.
    June 3, 2009.

      John F. DeRosier, District Attorney, Carla S. Sigler, Assistant District Attorney, Lake Charles, LA, for Appellee, State of Louisiana.

      Mark 0. Foster, Louisiana Appellate Project, Natchitoches, LA, for Defendant/Appellant, Joseph A. Granger, Jr.
    Court composed of MARC T. AMY, ELIZABETH A. PICKETT and J. DAVID PAINTER, Judges.
   AMY, Judge.

hThe defendant pled guilty to one count of theft over $500.00, a violation of La.R.S. 14:67. He was sentenced to serve six years at hard labor with the sentence to run consecutively with the sentences imposed on five other convictions. The defendant appeals, asserting that the sentence is excessive and that the trial court erred in ordering him to pay restitution to the victims of the crimes after he was sentenced. We affirm the defendant’s sentence, but vacate the Judgment of Restitution. We remand for further proceedings.

Factual and Procedural Background

This matter is one of six companion cases. In this case, the defendant, Joseph A. Granger, Jr., was initially charged by bill of information with one count of theft over $500. The State alleged that on January 10, 2008, the defendant agreed to perform certain services for the victim. Although the victim paid the defendant $3,561.00, the defendant did not perform the services. On December 12, 2005, the State amended the bill of information to include the victims under another docket number. As for this latter occurrence, the State alleged that, on March 26, 2002, the defendant was paid $1,547.21 to perform home repairs. No work was performed.

After the bill of information was amended, the defendant entered a guilty plea. He also entered guilty pleas for five other offenses. The trial court ordered a presen-tence investigation report.

|2On March 14, 2008, the trial court sentenced the defendant to six years at hard labor with the sentence to run consecutively with the sentences imposed for the other convictions.

Thereafter, the defendant filed a Motion to Amend or Modify Sentence or Alternatively Motion to Reconsider Sentence. The trial court denied the motion on April 14, 2008. Defense counsel later proffered evidence and testimony with regard to the denial of the Motion to Reconsider Sentence.

On June 4, 2008, the trial court issued a “Judgment of Restitution,” ordering the defendant to pay restitution to the victims of the crimes underlying the six convictions.

The defendant appeals, asserting that the sentences imposed are excessive and that the trial court erred in ordering restitution after sentencing the defendant.

Discussion

Errors Patent

Pursuant to La.Code Crim.P. art. 920, all appeals are reviewed for errors patent on the face of the record. After reviewing the record, we find no errors patent requiring correction.

1 ^Excessive Sentence

The defendant, on appeal, contends that his sentence is excessive, particularly because the six-year sentence was ordered to run consecutively to the six-year sentences imposed on the other five charges to which he also pled guilty. Relying on La.Code Crim.P. art. 883, he asserts that “all six cases clearly constituted a common scheme or plan to the extent that the state consolidated all six for an initial arraignment, a guilty plea and sentencing.” Further, the defendant argues that the trial court’s reasons for ordering that the sentences be served consecutively do not “articulate a basis for overriding the presumption of concurrent sentences.”

The defendant did not specifically raise the error of consecutive sentences in his motion to reconsider sentence filed in the trial court. Accordingly, the sentence will be reviewed under a bare excessiveness claim. See La. Code Crim. P. art. 881.1 and State v. Clark, 06-508 (La.App. 3 Cir. 9/27/06), 940 So.2d 799, writ denied, 06-2857 (La.9/21/07), 964 So.2d 324.

With regard to excessive sentence claims, this court stated:

|4La. Const. art. I, § 20 guarantees that, “[n]o law shall subject any person to cruel or unusual punishment.” To constitute an excessive sentence, the reviewing court must find the penalty so grossly disproportionate to the severity of the crime as to shock our sense of justice or that the sentence makes no measurable contribution to acceptable penal goals and is, therefore, nothing more than a needless imposition of pain and suffering. State v. Campbell, 404 So.2d 1205 (La.1981). The trial court has wide discretion in the imposition of sentence within the statutory limits and such sentence shall not be set aside as excessive absent a manifest abuse of discretion. State v. Etienne, 99-192 (La.App. 3 Cir. 10/13/99); 746 So.2d 124, writ denied, 00-0165 (La.6/30/00); 765 So.2d 1067. The relevant question is whether the trial court abused its broad sentencing discretion, not whether another sentence might have been more appropriate. State v. Cook, 95-2784 (La.5/31/96); 674 So.2d 957, cert. denied, 519 U.S. 1043, 117 S.Ct. 615, 136 L.Ed.2d 539 (1996).

State v. Barling, 00-1241, 00-1591, p. 12 (La.App. 3 Cir. 1/31/01), 779 So.2d 1035, 1042-43, writ denied, 01-838 (La.2/1/02), 808 So.2d 331.

The trial court, at the sentencing hearing, stated:

At this time the Court is called upon to go through Article 894.1 with regard to the sentencing guidelines. 894.1 indicates that there should be a sentence of imprisonment if any of the following occurs.
Is there an undue risk during a period of suspended sentence or probation that the defendant would commit another offense? It’s noted that the defendant is in fact a third time felony offender based on his classification from the Department of Corrections. Since he has been in his late twenties he has been constantly in trouble with the law, with all of these matters apparently involved with some form or allegation of taking of which there has at least been two prior felony convictions. The Court would answer that in the affirmative.
Is the defendant in need of correctional treatment or a custodial environment that can be provided most effectively by his commitment to an institution? It is apparent that as a third time offender that the defendant at this point has not learned to cease and desist and, in fact, there are six individual counts before the Court at this point and in comparing that with the past offenses the Court is also answering that in the affirmative; that a commitment to an institution is appropriate, as well as the defendant’s failure to adhere to the request to appear in Court on the number of bench warrants that his record also demonstrates.
Would any lessor [sic] sentence deprecate the seriousness of the offense? Obviously at some point the opportunities for probation based |son the statutory guidelines indicating that he is not eligible as a third time offender must indicate the State’s preference to some form of incarceration and further to continue to allow that defendant to be on the street. He’s basically a hindrance and hazard to the public and would deprecate the seriousness of this offense.
In looking at aggravating circumstances the Court notes the following: The offender offered or has been offered or has given or received something of value for the commission of these offenses by the very nature. The Court finds that to be aggravating.
The offender has used his position or status to facilitate the commission of these offenses. The victims in this case were vulnerable. They trusted the defendant, many of them in times of need following the hurricane and needing help to assist them in other repairs and items. The defendant has used his position and ability to be somewhat of a craftsman as far as floor coverings and such to gain their trust and then once he’s received funds then basically disappears with those monies and not provide the services that he previously rendered. In addition, he has submitted a number of worthless checks in an attempt to obtain something for nothing.
Other aggravating [sic], it is noted that these offenses have resulted in significant permanent injury or economic losses to the victims. In reviewing the pre-sentence investigation there is an aggregate of $46,622.76 from a number of victims that was determined by the officer with Probation and Parole and that is a significant economic expense, as well as the inability then to trust other individuals could cause some permanent detriment to the victims in this matter. The Court would find that aggravating.
The offenses involve multiple victims and incidences for which separate sentences have not been imposed. While the matters before the Court include six separate felony offenses, it is noted that there were a number of other offenses pursuant to that guilty plea that were in fact dismissed and the Court is not considering those, however it is noted that multiple victims and incidences did exist for aggravating purposes.
The offender was persistently involved in similar offenses not already considered as a criminal history or part of a multiple offender adjudication. He’s not been addressed as a multiple offender, however in a review of his history, while there’s not been convictions, the Court cannot ignore the number of allegations that have been brought against the defendant for the past fifteen, twenty years. The Court also finds that this offense was a major economic offense.
Other aggravating circumstances, specifically the defendant absconding from his sentencing hearing when given the opportunity toj^remain free and having received notice in open court made the decision to try and avoid the entirety of his sentence or repayment to society and by avoiding that proceeding not only delayed the Court’s business, but gave an indication as to his true intent, whether he was remorseful and willing to accept punishment for the actions that he has been involved with.
The defendant had made arguments that he would compensate or would compensate [sic] the victims, but at this time the Court’s received no proof that that in fact has been done and it is the Court’s opinion that those promises and now looking at the track record were merely an effort to delay the ultimate sentencing for the matters before the Court. That would be aggravating more than mitigating.
The defendant has no prior history of delinquency or criminal activity and has led a law abiding life for a substantial period of his life. That is much more aggravating than mitigating.
The defendant’s criminal conduct was the result of circumstances unlikely to recur. More aggravating than mitigating.
The defendant is particularly likely to respond affirmatively to probationary treatment. Again, he’s had those opportunities in the past and failed to take advantage of them. I find that to be more aggravating than mitigating.
The Court, if it did not mention one of the aggravating or mitigating circumstances specifically, they were considered and, if not mentioned, deemed insignificant or inapplicable to the incident [sic] offense.
At this time the defendant has pleaded guilty to docket 20582-02, felony worthless checks in an amount greater than $500; docket 3827-03, theft greater than $500, noting that that was one count with multiple victims inclusive; docket 28024-02, theft greater than $500; docket 20576-03, theft greater than $500; docket 4995-02, theft by fraud; and docket 28023-02, theft greater than $500.
At this time the Court hereby sentences the defendant, Mr. Joseph Alford Granger, to serve the sum of six years on each of those dockets. That term will run consecutive with one another and the Court at this time references Code Article 883 of the Code of Criminal Procedure. As previously indicated the Court is of the opinion it needs to annunciate particular justification if the sentence should be established as consecutive. The basis of that, the Court finds that the defendant has used his position to prey on societal needs. Each of these victims was 17an individual that had unique issues, losses, for which the defendant took advantage of. They occurred on different times, different physical locations, and all with the defendant’s intent to take from that specific victim or the matters associated with those specific dockets. Some were property takings, some were money takings for equipment rental, repair. Some were monies that were going to be received in advance to repair, such as remodeling or installing flooring, and many of the others were significant issuance of worthless checks to vendors or creditors that the defendant has pled guilty to knowing that there were no funds to pay for those.
The defendant will serve a total of 36 years with the Department of Corrections as a result of that.

The defendant in this case committed separate crimes, with separate victims, locations, and dates. Pursuant to La.Code Crim. P. art. 883, the sentence was to be served consecutively, unless the court expressly directed that it be served concurrently. Accordingly, the trial court did not err in ordering that the six sentences run consecutively.

As for the determination of whether the penalty imposed shocks one’s sense of justice, we note that the defendant received a mid-range sentence. Louisiana Revised Statutes 14:67(B)(1) instructs that the penalty for theft over $500.00 includes imprisonment of up to ten years with or without hard labor, or a fine of up to three thousand dollars, or both. The defendant was sentenced to six years, a mid-range sentence. Additionally, the defendant benefited from the aggregation of the three charges into a single count. See La.R.S. 14:67(C) and La.Code Crim.P. art. 481. |sAs such, this assignment of error lacks merit.

Restitution

In his second assignment of error, the defendant asserts that the trial court erred in ordering that he pay restitution two months after a hard labor sentence was imposed. He contends that, pursuant to La.Code Crim.P. art. 916, the trial court no longer had jurisdiction to issue such a judgment. Secondly, the defendant argues that “restitution is generally limited by statute to probated sentences.” Finally, he questions whether it was appropriate to impose restitution without a hearing being conducted.

At the sentencing hearing, the defendant’s attorney acknowledged, without “objections or additions” the content of the presentence investigation report, including the amounts of restitution owed to the victims. The trial court stated at the sentencing hearing:

I indicate to the State that they may seek or file a civil judgment in conformity with the pre-sentence investigation as to the respective victims and restitution less any credits that may have been received, Mrs. Wilson, for those respective amounts and they can remain in the civil records in the hopes of some time [sic] collecting those amounts.

After the defendant’s Motion to Reconsider Sentence was denied, the defendant filed a motion for appeal. Said motion was granted on May 14, 2008. On June 4, 2008, without a hearing, the trial court issued a judgment, ordering that the specified amounts of restitution be paid to the eighteen victims listed therein.

Suspension of a defendant’s sentence or placing a defendant on probation is not a prerequisite to imposing restitution. La. Code Crim.P. art. 883.2. At the time this offense was committed, La.Code Crim.P. art. 883.2 provided:

|3In all cases in which the court finds an actual pecuniary loss to a victim, or in any case where the court finds that costs have been incurred by the victim in connection with a criminal prosecution, the trial court shall order the defendant to provide restitution to the victim as a part of any sentence that the court shall impose.

(Emphasis added).

Furthermore, La.Code Crim.P. art. 886(A) provides, in pertinent part:

In the event of nonpayment ... of restitution to the victim, ... within sixty days after the sentence was imposed, and if no appeal is pending, the court which imposed the sentence may sign a judgment against the defendant in a sum equal to the fine or restitution plus judicial interest to begin sixty days after the sentence was imposed plus all costs of the criminal proceeding and subsequent proceedings necessary to enforce the judgment in either civil or criminal court, or both. Collection of the judgment may be enforced in either criminal or civil court, or both, in the same manner as a money judgment in a civil case.

(Emphasis added).

Louisiana Code of Criminal Procedure Article 916 also provides in pertinent part:

The jurisdiction of the trial court is divested and that of the appellate court attaches upon the entering of the order of appeal. Thereafter, the trial court has no jurisdiction to take any action except as otherwise provided by law and to:
(1) Extend the return day of the appeal, the time for filing assignments of error, or the time for filing per curiam comments in accordance with Articles 844 and 919.
(2) Correct an error or deficiency in the record.
(3) Correct an illegal sentence or take other appropriate action pursuant to a properly made or filed motion to reconsider sentence.
(4) Take all action concerning bail permitted by Title VIII.
(5) Furnish per curiam comments.
(6) Render an interlocutory order or a definitive | |ftjudgment concerning a ministerial matter not in controversy on appeal.
(7) Impose the penalty provided by Article 844.
(8) Sentence the defendant pursuant to a conviction under the Habitual Offender Law as set forth in R.S. 15:529.1.

Thus, the trial court was divested of jurisdiction in this case at the time it entered the Judgment of Restitution. The judgment is therefore a nullity.

Also, in State v. Roberts, 08-1026 (La.App. 3 Cir. 3/4/09), 4 So.3d 1011, the trial court stated at sentencing that it was “ ‘also granting] Mr. Gary Celestine a judgment in the amount of $28,556.71 against Mr. Roberts.’ ” Id. at 1016. The defendant appealed, arguing that the trial court did not order restitution as part of his sentence pursuant to La.Code Crim.P. art. 883.2. This court, relying on La.Code Crim.P. art. 886, held:

Rather than making restitution to the victim a part of the Defendant’s sentence, the trial court ordered restitution in the form of a money judgment. The judgment was improper as Defendant had not been given sixty days to pay restitution. Accordingly, the judgment is vacated, and this matter is remanded for the imposition of restitution as part of Defendant’s sentence as contemplated by La.Code Crim.P. art. 883.2.

Id. at 1016.

As in Roberts, the trial court improperly imposed restitution via a civil judgment, rather than as a part of the defendant’s sentence pursuant to La.Code Crim.P. art. 883.2.

Further, the record does not indicate that the defendant was present when the Judgment of Restitution was issued. In State v. Thomas, 05-1051, p. 4 (La.App. 3 Cir. 3/1/06), 924 So.2d 1146, 1149, abrogated on other grounds by State v. Stevens, 06-818 (La.App. 3 Cir. 1/31/07), 949 So.2d 597, this court stated:

| n Louisiana Code of Criminal Procedure Article 835 provides for the Defendant’s presence when sentence is pronounced:
In felony cases the defendant shall always be present when sentence is pronounced.... If a sentence is improperly pronounced in the defendant’s absence, he shall be resen-tenced when his presence is secured.
The imposition of restitution is considered a part of the defendant’s sentence, for which the defendant must be present. State v. Fortier, 03-882 (La.App. 5 Cir. 11/25/03), 862 So.2d 170. See also State v. Boudreaux, 98-1932 (La.App. 3 Cir. 6/16/99), 741 So.2d 860.

Accordingly, the Judgment of Restitution is vacated, and the matter is remanded to the trial court for restitution to be imposed as part of the defendant’s sentence as contemplated by La.Code Crim.P. art. 883.2. See, e.g., Thomas, 924 So.2d 1146 and Roberts, 4 So.3d 1011.

DECREE

For the foregoing reasons, the defendant’s sentence is affirmed, but the Judgment of Restitution is vacated. The matter is remanded to the trial court for re-sentencing with regard to amounts owed for restitution, in accordance with this opinion.

SENTENCE AFFIRMED. JUDGMENT OF RESTITUTION VACATED. REMANDED.

      . For the factual backgrounds of the other five convictions, see the decisions in the companion cases also before this court on appeal: State v. Joseph A. Granger, 08-1477 (La.App. 3 Cir.6/3/09), 11 So.3d 649, 2009 WL 1531616; State v. Joseph “Joey” Alford Granger, 08-1478 (La.App. 3 Cir.6/3/09), 11 So.3d 1215, 2009 WL 1531622; State v. Joey Granger, 08-1479 (La.App. 3 Cir.6/3/09), 11 So.3d 666, 2009 WL 1531626; State v. Joey Granger, 08-1480 (La.App. 3 Cir.6/3/09), 11 So.3d 658, 2009 WL 1531632; State v. Joseph A. Granger, Jr., 08-1481 (La.App. 3 Cir.6/3/09), 11 So.3d 683, 2009 WL 1531642.

      . Louisiana Code of Criminal Procedure Article 920 provides:
      Art. 920. Scope of appellate review
      The following matters and no others shall be considered on appeal:
      (1) An error designated in the assignment of errors; and
      (2) An error that is discoverable by a mere inspection of the pleadings and proceedings and without inspection of the evidence.

      . Louisiana Code of Criminal Procedure Article 883 provides:
      Art. 883. Concurrent and consecutive sentences
      If the defendant is convicted of two or more offenses based on the same act or transaction, or constituting parts of a common scheme or plan, the terms of imprisonment shall be served concurrently unless the court expressly directs that some or all be served consecutively. Other sentences of imprisonment shall be served consecutively unless the court expressly directs that some or all of them be served concurrently. In the case of the concurrent sentence, tire judge shall specify, and the court minutes shall reflect, the date from which the sentences are to run concurrently.

      . Louisiana Code of Criminal Procedure Article 881.1 provides, in pertinent part:
      E. Failure to make or file a motion to reconsider sentence or to include a specific ground upon which a motion to reconsider sentence may be based, including a claim of excessiveness, shall preclude the state or the defendant from raising an objection to the sentence or from urging any ground not raised in the motion on appeal or review.

      . Louisiana Revised Statutes 14:67(C) provides that ”[w]hen there has been a misappropriation or taking by a number of distinct acts of the offender, the aggregate of the amount of the misappropriations or taking shall determine the grade of the offense.”

      . Louisiana Code of Criminal Procedure Article 481 provides:
      An indictment of theft may include several counts against the same defendant for distinct acts of theft, and the aggregate amount of the thefts shall determine the grade of the offense charged. If a defendant misappropriates money or other things of value, which were entrusted to him by virtue of his office, employment, or any fiduciary relationship, he may be charged in one count with theft of the aggregate amount misappropriated by him during the entire time of his holding the office, employment, or' fiduciary relationship.


text:
    STATE of Louisiana v. Joseph A. GRANGER, Jr.
    No. 08-1481.
    Court of Appeal of Louisiana, Third Circuit.
    June 3, 2009.

      John F. DeRosier, District Attorney, Carla S. Sigler, Assistant District Attorney, Lake Charles, LA for Appellee, State of Louisiana.
    Mark 0. Foster, Louisiana Appellate Project, Natchitoches, LA, for Defendant/Appellant, Joseph A. Granger, Jr.
    Court composed of MARC T. AMY, ELIZABETH A. PICKETT and J. DAVID PAINTER, Judges.
   AMY, Judge.

11 The defendant pled guilty to one count of theft over $500.00, a violation of La.R.S. 14:67. He was sentenced to serve six years at hard labor with the sentence to run consecutively with the sentences imposed on five other convictions. The defendant appeals, asserting that the sentence is excessive and that the trial court erred in ordering him to pay restitution to the victims of the crimes after he was sentenced. We affirm the defendant’s sentence, but vacate the Judgment of Restitution. We remand for further proceedings.

Factual and Procedural Background

This matter is one of six companion cases. In this case, the defendant, Joseph A. Granger, Jr., was initially charged by bill of information with one count of theft over $500. The State alleged that the defendant agreed to repair a lawnmower for the victim, but after the victim paid $250 the defendant did not perform the repairs and did not return the lawn mower or the money. On December 12, 2005, the State amended the bill to include the victims in two other docket numbers which were then nolle prossed by the State. The State alleged that, in these instances, the defendant failed to repay $3,000 loaned by one victim and failed to perform work for which the other victim had paid the defendant $1,500. The defendant entered a guilty plea to the amended charge. He also entered guilty pleas for five other offenses. The trial court ordered a pre-sentence investigation report.

li>On March 14, 2008, the trial court sentenced the defendant to six years at hard labor with the sentence to run consecutively with the sentences imposed for the other convictions.

Thereafter, the defendant filed a Motion to Amend or Modify Sentence or Alternatively Motion to Reconsider Sentence. The trial court denied the motion on April 14, 2008. Defense counsel later proffered evidence and testimony with regard to the denial of the Motion to Reconsider Sentence.

On June 4, 2008, the trial court issued a “Judgment of Restitution,” ordering the defendant to pay restitution to the victims of the crimes underlying the six convictions.

The defendant appeals, asserting that the sentences imposed are excessive and that the trial court erred in ordering restitution after sentencing the defendant.

Discussion

Errors Patent

Pursuant to La.Code Crim.P. art. 920, all appeals are reviewed for errors patent on the face of the record. After reviewing the record, we find no errors patent requiring correction.

\RExcessive Sentence

The defendant, on appeal, contends that his sentence is excessive, particularly because the six-year sentence was ordered to run consecutively to the six-year sentences imposed on the other five charges to which he also pled guilty. Relying on La.Code Crim.P. art. 883, he asserts that “all six cases clearly constituted a common scheme or plan to the extent that the state consolidated all six for an initial arraignment, a guilty plea and sentencing.” Further, the defendant argues that the trial court’s reasons for ordering that the sentences be served consecutively do not “articulate a basis for overriding the presumption of concurrent sentences.”

The defendant did not specifically raise the error of consecutive sentences in his motion to reconsider sentence filed in the trial court. Accordingly, the sentence will be reviewed under a bare excessiveness claim. See La.Code Crim. P. art. 881.1 and State v. Clark, 06-508 (La.App. 3 Cir. 9/27/06), 940 So.2d 799, writ denied, 06-2857 (La.9/21/07), 964 So.2d 324.

With regard to excessive sentence claims, this court stated:

|4La. Const. art. I, § 20 guarantees that, “[n]o law shall subject any person to cruel or unusual punishment.” To constitute an excessive sentence, the reviewing court must find the penalty so grossly disproportionate to the severity of the crime as to shock our sense of justice or that the sentence makes no measurable contribution to acceptable penal goals and is, therefore, nothing more than a needless imposition of pain and suffering. State v. Campbell, 404 So.2d 1205 (La.1981). The trial court has wide discretion in the imposition of sentence within the statutory limits and such sentence shall not be set aside as excessive absent a manifest abuse of discretion. State v. Etienne, 99-192 (La.App. 3 Cir. 10/13/99); 746 So.2d 124, writ denied, 00-0165 (La.6/30/00); 765 So.2d 1067. The relevant question is whether the trial court abused its broad sentencing discretion, not whether another sentence might have been more appropriate. State v. Cook, 95-2784 (La.5/31/96); 674 So.2d 957, cert. denied, 519 U.S. 1043, 117 S.Ct. 615, 136 L.Ed.2d 539 (1996).

State v. Barling, 00-1241, 00-1591, p. 12 (La.App. 3 Cir. 1/31/01), 779 So.2d 1035, 1042-43, writ denied, 01-838 (La.2/1/02), 808 So.2d 331.

The trial court, at the sentencing hearing, stated:

At this time the Court is called upon to go through Article 894.1 with regard to the sentencing guidelines. 894.1 indicates that there should be a sentence of imprisonment if any of the following occurs.
Is there an undue risk during a period of suspended sentence or probation that the defendant would commit another offense? It’s noted that the defendant is in fact a third time felony offender based on his classification from the Department of Corrections. Since he has been in his late twenties he has been constantly in trouble with the law, with all of these matters apparently involved with some form or allegation of taking of which there has at least been two prior felony convictions. The Court would answer that in the affirmative.
Is the defendant in need of correctional treatment or a custodial environment that can be provided most effectively by his commitment to an institution? It is apparent that as a third time offender that the defendant at this point has not learned to cease and desist and, in fact, there are six individual counts before the Court at this point and in comparing that with the past offenses the Court is also answering that in the affirmative; that a commitment to an institution is appropriate, as well as the defendant’s failure to adhere to the request to appear in Court on the number of bench warrants that his record also demonstrates.
Would any lessor [sic] sentence deprecate the seriousness of the offense? Obviously at some point the opportunities for probation based Ron the statutory guidelines indicating that he is not eligible as a third time offender must indicate the State’s preference to some form of incarceration and further to continue to allow that defendant to be on the street. He’s basically a hindrance and hazard to the public and would deprecate the seriousness of this offense.
In looking at aggravating circumstances the Court notes the following: The offender offered or has been offered or has given or received something of value for the commission of these offenses by the very nature. The Court finds that to be aggravating.
The offender has used his position or status to facilitate the commission of these offenses. The victims in this case were vulnerable. They trusted the defendant, many of them in times of need following the hurricane and needing help to assist them in other repairs and items. The defendant has used his position and ability to be somewhat of a craftsman as far as floor coverings and such to gain their trust and then once he’s received funds then basically disappears with those monies and not provide the services that he previously rendered. In addition, he has submitted a number of worthless checks in an attempt to obtain something for nothing.
Other aggravating [sic], it is noted that these offenses have resulted in sig-nifícant permanent injury or economic losses to the victims. In reviewing the pre-sentence investigation there is an aggregate of $46,622.76 from a number of victims that was determined by the officer with Probation and Parole and that is a significant economic expense, as well as the inability then to trust other individuals could cause some permanent detriment to the victims in this matter. The Court would find that aggravating.
The offenses involve multiple victims and incidences for which separate sentences have not been imposed. While the matters before the Court include six separate felony offenses, it is noted that there were a number of other offenses pursuant to that guilty plea that were in fact dismissed and the Court is not considering those, however it is noted that multiple victims and incidences did exist for aggravating purposes.
The offender was persistently involved in similar offenses not already considered as a criminal history or part of a multiple offender adjudication. He’s not been addressed as a multiple offender, however in a review of his history, while there’s not been convictions, the Court cannot ignore the number of allegations that have been brought against the defendant for the past fifteen, twenty years. The Court also finds that this offense was a major economic offense.
Other aggravating circumstances, specifically the defendant absconding from his sentencing hearing when given the opportunity to | ^remain free and having received notice in open court made the decision to try and avoid the entirety of his sentence or repayment to society and by avoiding that proceeding not only delayed the Court’s business, but gave an indication as to his true intent, whether he was remorseful and willing to accept punishment for the actions that he has been involved with..
The defendant had made arguments that he would compensate or would compensate [sic] the victims, but at this time the Court’s received no proof that that in fact has been done and it is the Court’s opinion that those promises and now looking at the track record were merely an effort to delay the ultimate sentencing for the matters before the Court. That would be aggravating more than mitigating.
The defendant has no prior history of delinquency or criminal activity and has led a law abiding life for a substantial period of his life. That is much more aggravating than mitigating.
The defendant’s criminal conduct was the result of circumstances unlikely to recur. More aggravating than mitigating.
The defendant is particularly likely to respond affirmatively to probationary treatment. Again, he’s had those opportunities in the past and failed to take advantage of them. I find that to be more aggravating than mitigating.
The Court, if it did not mention one of the aggravating or mitigating circumstances specifically, they were considered and, if not mentioned, deemed insignificant or inapplicable to the incident [sic] offense.
At this time the defendant has pleaded guilty to docket 20582-02, felony worthless checks in an amount greater than $500; docket 3827-03, theft greater than $500, noting that that was one count with multiple victims inclusive; docket 28024-02, theft greater than $500; docket 20576-03, theft greater than $500; docket 4995-02, theft by fraud; and docket 28023-02, theft greater than $500.
At this time the Court hereby sentences the defendant, Mr. Joseph Alford Granger, to serve the sum of six years on each of those dockets. That term will run consecutive with one another and the Court at this time references Code Article 883 of the Code of Criminal Procedure. As previously indicated the Court is of the opinion it needs to annunciate particular justification if the sentence should be established as consecutive. The basis of that, the Court finds that the defendant has used his position to prey on societal needs. Each of these victims was 17an individual that had unique issues, losses, for which the defendant took advantage of. They occurred on different times, different physical locations, and all with the defendant’s intent to take from that specific victim or the matters associated with those specific dockets. Some were property takings, some were money takings for equipment rental, repair. Some were monies that were going to be received in advance to repair, such as remodeling or installing flooring, and many of the others were significant issuance of worthless checks to vendors or creditors that the defendant has pled guilty to knowing that there were no funds to pay for those.
The defendant will serve a total of 36 years with the Department of Corrections as a result of that.

The defendant in this case committed separate crimes, with separate victims, locations, and dates. Pursuant to La.Code Crim. P. art. 883, the sentence was to be served consecutively, unless the court expressly directed that it be served concurrently. Accordingly, the trial court did not err in ordering that the six sentences run consecutively.

Regarding the determination of whether the penalty imposed shocks one’s sense of justice, we note that the defendant received a mid-range sentence. Louisiana Revised Statutes 14:67(B)(1) instructs that the penalty for theft over $500.00 includes imprisonment of up to ten years with or without hard labor, or a fine of up to three thousand dollars, or both. The defendant was sentenced to six years, a mid-range sentence. Additionally, the defendant benefited from the aggregation of three charges into a single count. See La.R.S. 14:67(C) and La.Code Crim.P. art. 481. |sAs such, this assignment of error lacks merit.

Restitution

In his second assignment of error, the defendant asserts that the trial court erred in ordering that he pay restitution two months after a hard labor sentence was imposed. He contends that, pursuant to La.Code Crim.P. art. 916, the trial court no longer had jurisdiction to issue such a judgment. Secondly, the defendant argues that “restitution is generally limited by statute to probated sentences.” Finally, he questions whether it was appropriate to impose restitution without a hearing being conducted.

At the sentencing hearing, the defendant’s attorney acknowledged, without “objections or additions” the content of the presentence investigation report, including the amounts of restitution owed to the victims. The trial court stated at the sentencing hearing:

I indicate to the State that they may seek or file a civil judgment in conformity with the pre-sentence investigation as to the respective victims and restitution less any credits that may have been received, Mrs. Wilson, for those respective amounts and they can remain in the civil records in the hopes of some time [sic] collecting those amounts.

After the defendant’s Motion to Reconsider Sentence was denied, the defendant filed a motion for appeal. Said motion was granted on May 14, 2008. On June 4, 2008, without a hearing, the trial court issued a judgment, ordering that the specified amounts of restitution be paid to the eighteen victims listed therein.

Suspension of a defendant’s sentence or placing a defendant on probation is not a prerequisite to imposing restitution. La. Code Crim.P. art. 883.2. At the time this offense was committed, La.Code Crim.P. art. 883.2 provided:

|3In all cases in which the court finds an actual pecuniary loss to a victim, or in any case where the court finds that costs have been incurred by the victim in connection with a criminal prosecution, the trial court shall order the defendant to provide restitution to the victim as a part of any sentence that the court shall impose.

(Emphasis added).

Furthermore, La.Code Crim.P. art. 886(A) provides, in pertinent part:

In the event of nonpayment ... of restitution to the victim, ... within sixty days after the sentence was imposed, and if no appeal is pending, the court which imposed the sentence may sign a judgment against the defendant in a sum equal to the fine or restitution plus judicial interest to begin sixty days after the sentence was imposed plus all costs of the criminal proceeding and subsequent proceedings necessary to enforce the judgment in either civil or criminal court, or both. Collection of the judgment may be enforced in either criminal or civil court, or both, in the same manner as a money judgment in a civil case.

(Emphasis added).

Louisiana Code of Criminal Procedure Article 916 also provides in pertinent part:

The jurisdiction of the trial court is divested and that of the appellate court attaches upon the entering of the order of appeal. Thereafter, the trial court has no jurisdiction to take any action except as otherwise provided by law and to:
(1) Extend the return day of the appeal, the time for filing assignments of error, or the time for filing per curiam comments in accordance with Articles 844 and 919.
(2) Correct an error or deficiency in the record.
(3) Correct an illegal sentence or take other appropriate action pursuant to a properly made or filed motion to reconsider sentence.
(4) Take all action concerning bail permitted by Title VIII.
(5) Furnish per curiam comments.
(6) Render an interlocutory order or a definitive | ^judgment concerning a ministerial matter not in controversy on appeal.
(7) Impose the penalty provided by Article 844.
(8) Sentence the defendant pursuant to a conviction under the Habitual Offender Law as set forth in R.S. 15:529.1.

Thus, the trial court was divested of jurisdiction in this case at the time it entered the Judgment of Restitution. The judgment is therefore a nullity.

Also, in State v. Roberts, 08-1026 (La.App. 3 Cir. 3/4/09), 4 So.3d 1011, the trial court stated at sentencing that it was “ ‘also granting] Mr. Gary Celestine a judgment in the amount of $28,556.71 against Mr. Roberts.’ ” Id. at 1016. The defendant appealed, arguing that the trial court did not order restitution as part of his sentence pursuant to La.Code Crim.P. art. 883.2. This court, relying on La.Code Crim.P. art. 886, held:

Rather than making restitution to the victim a part of the Defendant’s sentence, the trial court ordered restitution in the form of a money judgment. The judgment was improper as Defendant had not been given sixty days to pay restitution. Accordingly, the judgment is vacated, and this matter is remanded for the imposition of restitution as part of Defendant’s sentence as contemplated by La.Code Crim.P. art. 883.2.

Id. at 1016.

As in Roberts, the trial court improperly imposed restitution via a civil judgment, rather than as a part of the defendant’s sentence pursuant to La.Code Crim.P. art. 883.2.

Further, the record does not indicate that the defendant was present when the Judgment of Restitution was issued. In State v. Thomas, 05-1051, p. 4 (La.App. 3 Cir. 3/1/06), 924 So.2d 1146, 1149, abrogated on other grounds by State v. Stevens, 06-818 (La.App. 3 Cir. 1/31/07), 949 So.2d 597, this court stated:

1 nLouisiana Code of Criminal Procedure Article 835 provides for the Defendant’s presence when sentence is pronounced:
In felony cases the defendant shall always be present when sentence is pronounced.... If a sentence is improperly pronounced in the defendant’s absence, he shall be resen-tenced when his presence is secured.
The imposition of restitution is considered a part of the defendant’s sentence, for which the defendant must be present. State v. Fortier, 03-882 (La.App. 5 Cir. 11/25/03), 862 So.2d 170. See also State v. Boudreaux, 98-1932 (La.App. 3 Cir. 6/16/99), 741 So.2d 860.

Accordingly, the Judgment of Restitution is vacated, and the matter is remanded to the trial court for restitution to be imposed as part of the defendant’s sentence as contemplated by La. Code Crim.P. art. 883.2. See, e.g., Thomas, 924 So.2d 1146 and RobeRs, 4 So.3d 1011.

DECREE

For the foregoing reasons, the defendant’s sentence is affirmed, but the Judgment of Restitution is vacated. The matter is remanded to the trial court for re-sentencing with regard to amounts owed for restitution, in accordance with this opinion.

SENTENCE AFFIRMED. JUDGMENT OF RESTITUTION VACATED. REMANDED.

      . For the factual backgrounds of the other five convictions, see the decisions in the companion cases also before this court on appeal: State v. Joseph A. Granger, 08-1477 (La.App. 3 Cir.6/3/09), 11 So.3d 649, 2009 WL 1531616; State v. Joseph “Joey” Alford Granger, 08-1478 (La.App. 3 Cir.6/3/09), 11 So.3d 1215, 2009 WL 1531622; State v. Joey Granger, 08-1479 (La.App. 3 Cir.6/3/09), 11 So.3d 666, 2009 WL 1531626; State v. Joey Granger, 08-1480 (La.App. 3 Cir.6/3/09), 11 So.3d 658, 2009 WL 1531632; State v. Joseph A. Granger, 08-1482 (La.App. 3 Cir.6/3/09), 11 So.3d 675, 2009 WL 1531649.

      . Louisiana Code of Criminal Procedure Article 920 provides:
      Art. 920. Scope of appellate review
      The following matters and no others shall be considered on appeal:
      (1) An error designated in the assignment of errors; and
      (2) An error that is discoverable by a mere inspection of the pleadings and proceedings and without inspection of the evidence.

      . Louisiana Code of Criminal Procedure Article 883 provides:
      Art. 883. Concurrent and consecutive sentences
      If the defendant is convicted of two or more offenses based on the same act or transaction, or constituting parts of a common scheme or plan, the terms of imprisonment shall be served concurrently unless the court expressly directs that some or all be served consecutively. Other sentences of imprisonment shall be seived consecutively unless the court expressly directs that some or all of them be served concurrently. In the case of the concurrent sentence, the judge shall specify, and the court minutes shall reflect, the date from which the sentences are to run concurrently.

      .Louisiana Code of Criminal Procedure Article 881.1 provides, in pertinent part:
      E. Failure to make or file a motion to reconsider sentence or to include a specific ground upon which a motion to reconsider sentence may be based, including a claim of excessiveness, shall preclude the state or the defendant from raising an objection to the sentence or from urging any ground not raised in the motion on appeal or review.

      . Louisiana Revised Statutes 14:67(C) provides that "[w]hen there has been a misappropriation or taking by a number of distinct acts of the offender, the aggregate of the amount of the misappropriations or taking shall determine the grade of the offense.”

      . Louisiana Code of Criminal Procedure Article 481 provides:
      An indictment of theft may include several counts against the same defendant for distinct acts of theft, and the aggregate amount of the thefts shall determine the grade of the offense charged. If a defendant misappropriates money or other things of value, which were entrusted to him by virtue of his office, employment, or any fiduciary relationship, he may be charged in one count with theft of the aggregate amount misappropriated by him during the entire time of his holding the office, employment, or fiduciary relationship.


author: DECUIR, Judge.

text:
    Jerry ANDERSON v. BEST WESTERN SUITES HOTELS.
    No. 09-78.
    Court of Appeal of Louisiana, Third Circuit.
    June 3, 2009.

      James E. Burks, Attorney at Law, Lake Charles, LA, for Plaintiff/Appellee, Jerry Anderson.
    Mark Aekal, Mark Ackal & Associates, Lafayette, LA, for Defendant/Appellant:, Best Western Suites Hotels.
    Court composed of OSWALD A. DECUIR, MICHAEL G. SULLIVAN, and BILLY HOWARD EZELL, Judges.
   DECUIR, Judge.

[!Jerry Anderson filed this workers’ compensation claim against his employer, S & R Hotels L.L.C. d/b/a Best Western Suites Hotels, after he was hit by the door of a freight elevator and injured his back. After trial on the merits, the workers’ compensation judge rendered judgment in favor of Anderson, awarding indemnity payments, penalties, and attorney fees, and further ordering that Anderson be allowed to see his choice of physician. The employer appeals and, for the following reasons, we affirm.

The factual and procedural background of this case is best explained in the words of the workers’ compensation judge:

Mr. Anderson appears in court today with a paucity of medical support for his claim. The insurance company’s reasons for denying treatment are pretty much left to be inferred by the court because the adjuster who made these decisions is not here to explain them. The witnesses to the accident are not here. So after listening intently for about three hours of testimony, I have concluded this is what happened: There’s not much to dispute that Mr. Anderson was involved in an accident at the elevator at work. The defendant really doesn’t deny that flatly. There’s no doubt that he was in the course and scope of his duties at the time of whatever happened at work happened. The issue here is did the insurance company have reasonable grounds to deny medical treatment by his choice of physician? Mr. Anderson has an imperfect past. He has a litigious enough background to lift any reasonable gentleman’s eyebrow. But flatly denying medical treatment requires a lot more than that, a whole lot more. When an employee gets jammed between an elevator gate and the door when the elevator is improperly moved by a fellow employee, the fact that the injured worker who is struck in this situation has a history of back problem is of little moment. He was not, I grant you, a picture of spinal health when all this occurred. He probably has never been the employee of the month in any of the few jobs that he seems to have held. However, he now says that the symptoms he now suffers are different and worse than his previous back problems. That is his testimony. [Defense counsel] is right: It stands without much medical confirmation, but he cannot afford to see a doctor and the insurance company won’t send him to see his choice of physician. It’s clear to me that his choice of physician is decidedly not the industry clinic he was sent to for some reason, [or] the orthopedic surgeons, these folks referred him to. No one has offered any credible testimony, in fact no testimony at all, that he was not injured as he described in his testimony. He seems to have been working albeit | ^infrequently, slowly, and in pain, apparently before the accident; no one would much dispute that. I can’t see where the insurance company did anything more than leap to a very convenient conclusion based on this man’s history. And, as I say, his history could raise concern. But concern should prompt a thorough investigation, not a termination of benefits. It appears to me here that most of the investigation, and it was well done, was conducted by [defense counsel] after the fact, and although I admire his efforts here, that’s not the way it’s supposed to work. The insurance investigator is supposed to do a little more than they did in this case. The Court finds that Mr. Anderson was injured in the course and scope of his employment and that the insurance company will reinstate his indemnity payments retroactive to the termination date until further order of the court. He will be afforded the opportunity to see a physician of his choice for evaluation. A $2,000 penalty is assessed for improper termination of benefits and a $2,000 penalty is assessed for refusal to provide a choice of physician. Attorney’s fees are set at $8,000.

The record shows that the employer provided immediate medical attention to Anderson, which continued for nearly a year, and paid weekly indemnity benefits to him for approximately six months. When benefits were terminated, the employer neglected to respond to Anderson’s requests for further information and for approval to see the physician of his choice, and this disputed claim was initiated.

On appeal, the employer contests the factual findings that Anderson was injured in a work-related accident and that he is entitled to indemnity benefits, penalties, and attorney fees. Our review of the record, however, reveals no error in the conclusions reached by the workers’ compensation judge.

The standard of review in workers’ compensation cases is the manifest error or clearly wrong standard. Braxton v. Ryan’s Family Steakhouse, 04-148 (La.App. 3 Cir. 6/2/04), 878 So.2d 731. The appellate court must determine not whether the fact finder was right or wrong, but whether the factual conclusions were reasonable in light of the entire record. Rosell v. ESCO, 549 So.2d 840 (La.1989).

Where there is a conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed |supon review even though the appellate court may feel that its own evaluations and inferences are more reasonable. Deference is due to the factfinder’s determinations regarding the credibility of witnesses, “for only the factfinder can be aware of the variations in demeanor and tone of voice that bear so heavily on the listener’s understanding and belief in what is said.” Rosell, 549 So.2d at 844.

Veazie v. Gilchrist Constr. Co., 04-118, p. 3 (La.App. 3 Cir. 6/2/04), 878 So.2d 742, 744-45, writ denied, 04-1692 (La.10/8/04), 883 So.2d 1018 (citation omitted).

The claimant’s burden of proof in establishing the occurrence of a job-related accident is preponderance of the evidence. Bruno v. Harbert Int'l, Inc., 593 So.2d 357 (La.1992). Considering the evidence in the record before us, the immediate medical attention provided by the employer, and the undisputed continuing medical complaints of the claimant, we find no error in the decision to allow Anderson to see his choice of physician. Likewise, we find no manifest error in the award of benefits, penalties, and attorney fees. We decline to award additional attorney fees for work done on appeal, as Anderson neither appealed nor answered the appeal asking for same.

The judgment appealed from is affirmed. Costs are assessed to the appellant.

AFFIRMED.


author: PICKETT, Judge.

text:
    STATE of Louisiana v. Timothy Glen GRANGER.
    No. 08-1531.
    Court of Appeal of Louisiana, Third Circuit.
    June 3, 2009.
    James C. Downs, District Attorney — 9th JDC, Thomas R. Willson, Assistant District Attorney, Alexandria, LA, for Plaintiff-Appellee, State of Louisiana.
    Henry H. Lemoine, Howell D. Jones, IV, Lemoine & Wampler, Pineville, LA, for Defendant-Appellant, Timothy Glen Gran-ger.
    Court composed of MARC T. AMY, ELIZABETH A. PICKETT, and J. DAVID PAINTER, Judges.
   PICKETT, Judge.

11 The defendant, Timothy Glen Granger, was charged by bill of information filed on March 14, 2006, with obscenity, a violation of La.R.S. 14:106. The defendant entered a plea of not guilty on June 16, 2006.

A bench trial commenced on March 31, 2008, and the trial court found the defendant guilty of obscenity. A Motion for New Trial and a Motion for Judgment of Acquittal were filed on April 22, 2008. The motions were denied on June 30, 2008. The defendant was subsequently sentenced to serve three years at hard labor. The sentence was suspended and the defendant was placed on supervised probation for a period of three years. The trial court also ordered the defendant to pay a fine of $500 and court costs in the amount of $241.50. In default of payment, the defendant was to serve six months in the parish jail.

A Motion for Appeal was filed on July 3, 2008, and granted on July 8, 2008. When granting that motion, the trial court stayed the execution of sentence pending the outcome of this appeal. The defendant is now before this court asserting one assignment of error. Therein, the defendant contends the trial court declared witness Harold Granger to be credible, which creates a reasonable doubt as to his guilt.

FACTS

The defendant was convicted of obscenity for masturbating in his vehicle while driving alongside a school bus on Hwy. 165 in Ball, Louisiana, on January 25, 2006, at approximately 8:19 a.m.

David Williams, the school bus driver, described the events that occurred while he was driving from Paradise Elementary to Ball Elementary as follows:

I’m in the right hand lane, and I went to tap my breaks, and I looked down and the car; you know, at first I didn’t, ah, it can’t be what|2I think it is, so I go on a little further and by the time I get to the light, it was still in the same position. So, I tapped my breaks again, and when I did, I looked back — I looked down into the car, and the person driving the car trousers were unzipped and their hand was going up and down and they were leaning — there’s a — I call it an imaginary line in a car, and they were leaning over the car like this (indicating) looking up at the bus with their hand going like this.
In the passenger’s side, and, uh, I thought, you know, I said, “nah,” then I said, “Yes it is”. So, I kept on going to the school. I was making sure that none of the kids [saw] anything that was going on because they { sic } teachers at school would have — if anything happens on the bus and you don’t know it, you’re fired .... and I looked and nobody was paying attention because kids were playing, and I turned in to go to the school, but. before I turned to go to the school, there’s — -the car that was on the side of me, kind of like [ran] off the road. They were still doing their thing, looking at the bus, and running off the road right by, uh, Select — -just after you pass Select Motors, and when I turned to go down Camp Livingston Road, they turned at the median by a little pizza place and went around and came back, and I went on to the school and, uh, reported it to a safety officer. And from there I called, I called my boss on the radio first, and then I reported to the safety officer, and then I went to the police department.

Williams further testified that he saw the driver of the vehicle’s “[p]ants unzipped, and his hand in his lap in an up and down motion.” Williams also stated that the driver had his penis in his hand and that he had no question about that. However, in his statement to police, Williams did not specifically state that he saw the man’s penis.

Williams wrote down the license plate number of the vehicle and turned it over to police. Police showed Williams several photographs and he identified the defendant as the driver of the car. He also made an in-court identification of the defendant. Williams testified there was no one else in the car at that time.

The defendant denied masturbating in his car. The defendant further testified that his father was in the car with him that day and that it was his father’s birthday. He further testified that the two dropped his son off at school, and as he turned back |sonto Highway 165, he spilled coffee in his lap. After he spilled the coffee, he turned at Ball Supermarket and drove back north to get deer feed that his father wanted at Robinson’s Feed and Seed. Before getting to the feed store, the defendant turned around and drove back home because he could not go into the store because of his clothes.

The defendant asserted that he did not see a school bus that day. However, if Williams saw anything, it was him trying to clean his lap.

The defendant testified that his father never attempted to exonerate him, he chose not to get his father involved, and he requested that his father not say anything. Additionally, he did not tell police his father was with him because he had been taught to answer only the questions he was asked.

The defendant had previously entered a plea of nolo contendere to lewd and lascivious conduct with a juvenile in Florida and was placed on probation for two years. The defendant was asked if the Florida allegation involved his exposing his penis to a young female, and he asserted he was attempting to urinate.

Harold Ray Granger, the defendant’s father, testified that he rode with the defendant to drop the defendant’s son off at school on the date in question. Further, the defendant was always accompanied by Harold or his wife due to the allegations in Florida.

Harold testified that he sat in the back seat that morning. After the two dropped the defendant’s son off at school, they proceeded in the direction of the store where Harold could buy deer feed. Harold testified that he and the defendant were headed toward Kingsville when the defendant spilled coffee in his lap. They turned around at the entrance to Ball Food Store. The two then got near Simms Crossing and |,jdecided to go home. Harold testified that he never saw the defendant masturbate as they drove next to a school bus.

Harold testified that to get to his home, one would turn on Highway 1204. Select Motors was located at that intersection. Harold explained the route he and the defendant took to bring the defendant’s son to school as follows:

We came out on Highway 1204, and we turned left and went to Select Motors, and from Select Motors we crossed the highway and went left, uh, about one block and went to Ball Elementary School.

When they left the school, they turned left and got back on Highway 165 and drove south.

Harold further testified that the defendant spilled the coffee when they got back onto Highway 165 from leaving the school. Harold remembered the event because it occurred on his birthday. Harold asserted that no one ever asked if he was with the defendant on the date in question.

Laura Granger, the defendant’s mother, testified that she saw a coffee spill on the defendant’s pants on January 25, 2006.

After hearing from the witnesses, the trial court stated that he was “impressed” with the testimonies of both Williams and Harold Granger. The trial court then asked the following question:

the bus driver said that he saw the defendant in between Paradise Elementary and Ball Elementary, and it appears to me it was kind of like in between Paradise and where the Ball Cutoff Road is. Not close to Ball Elementary, which he said was about a quarter of a mile from where Ball Cutoff intersects with 165. The defendant that day would have come down Ball Cutoff Road, taken a left, and run down here to Ball Elementary. Miss the— the bus driver said he saw them between Paradise and here on this date in question. Uh, the defendant was not in this area from Paradise to Ball Cutoff Road.

|sThe trial court further stated:

So, if, if what everybody is saying — what the defendant and his father are saying, that they would have come from Ball Cutoff Road, uh, made a left and gone down here on that day, that that bus driver couldn’t have seen them that day.
But I find it hard to believe that he’s imagining this. This is my problem.

The trial court then stated that Williams was able to identify both the defendant in court and a photograph of the car. It found that Williams was a “credible” witness, and it “had no problem with his testimony.” The trial court then noted that Williams said that he saw the defendant’s penis and that no one else was in the car. The trial court further stated that it had “no reason to doubt his testimony” and that it had “not been given any reason why I shouldn’t believe him.”

The trial court was not “impressed” with the defendant’s testimony. However, it was “very impressed” with Harold’s testimony. The trial court then stated that it thought Harold was confused about the date on which this event occurred. The trial court then said that if the defendant and Harold were taking the defendant’s son to school they would not have been between Paradise and where Ball Cutoff Road would have been, which is where Williams said he saw the defendant. The trial court then ruled as follows: “So, based upon the evidence that I’ve heard, I believe that the State — I’m firmly convinced of the truth of the charge, and that the State’s proved beyond a reasonable doubt that Mr. Granger committed the offense of obscenity on January 25, 2006.”

ERRORS PATENT

In accordance with La.Code Crim.P. art. 920, all appeals are reviewed by this court for errors patent on the face of the record. After reviewing the record, we find](¡there are two errors patent, one of which requires that the defendant’s sentence be vacated and the case remanded for resen-tencing.

Louisiana Code of Criminal Procedure Article 835 requires a defendant to be present when sentence is pronounced. In the present case, the defendant was not present at sentencing, but he waived his appearance by a written waiver signed by him.

In State v. Bradford, 29,654 (La.App. 2 Cir. 9/24/97), 700 So.2d 1046, the second circuit held that a defendant’s presence at sentencing, or, in that particular case, re-sentencing, cannot be waived. Finding the defendant’s resentencing invalid, the court set it aside and remanded for resentenc-ing. In State v. Thomas, 05-1051 (La.App. 3 Cir. 3/1/06), 924 So.2d 1146, abrogated on other grounds by State v. Stevens, 06-818 (La.App. 3 Cir. 1/31/07), 949 So.2d 597, defense counsel waived the defendant’s presence at the hearing on his motion to reconsider sentence. This court acknowledged that although a defendant’s presence is not required at a hearing on a 17motion to reconsider sentence where the trial court simply rules on the motion, his presence is required where he is actually resentenced, as was the case in Thomas. Thus, this court recognized as error patent the defendant’s absence from the hearing.

In the present case, the defendant’s sentence is vacated and the case remanded for resentencing in his presence, as required by La.Code Crim.P. art. 835. See Bradford, 700 So.2d 1046, and State v. Heim, 03-957 (La.App. 4 Cir. 3/10/04), 870 So.2d 335, writ denied, 04-884 (La.10/1/04), 883 So.2d 1004.

Next, the record does not indicate that the trial court advised the defendant of the prescriptive period for filing an application for post-conviction relief as required by La.Code Crim.P. art. 930.8. Thus, the trial court is directed to inform the defendant of the provisions of article 930.8 at his resentencing.

ASSIGNMENT OF ERROR

In his only assignment of error, the defendant contends that Harold’s testimony, which was declared credible by the trial court, creates reasonable doubt as to his guilt.

[T]he Jackson standard of review ... permits an appellate court to impinge on the actual fact finder’s discretion “only to the extent necessary to guarantee the fundamental protection of due process of law.” Jackson [v. Virginia ], 443 U.S. [307] at 319, 99 S.Ct. [2781] at 2789[, 61 L.Ed.2d 560] [ (1979) ] (footnote omitted). Given this narrow compass, the Jackson standard neither permits a reviewing court to second guess the rational credibility determinations of the fact finder at trial, State ex rel. Graffagnino v. King, 436 So.2d 559, 563 (La.1983), nor requires a reviewing court to consider the rationality of the thought processes employed by a particular fact finder in reaching a verdict. Jackson observed in this regard: “The question whether the evidence is constitutionally sufficient is of course wholly unrelated to the question of how rationally the verdict was actually reached. Just as the [rational fact finder] standard ... does not permit a court to make its own subjective determination of guilt or innocence, it does not require scrutiny of the reasoning process actually used by the factfinder-if known.” Jackson, 443 U.S. at 319 n. 13, 99 S.Ct. at 2789.

|8State v. Marshall, 04-3139, pp. 5-6 (La.11/29/06), 943 So.2d 362, 367, cert. denied, - U.S. -, 128 S.Ct. 239, 169 L.Ed.2d 179 (2007).

The defendant was convicted of obscenity. Obscenity is the intentional “[exposure of the genitals, pubic hair, anus, vulva, or female breast nipples in any public place or place open to the public view, or in any prison or jail, with the intent of arousing sexual desire or which appeals to prurient interest or is patently offensive.” La.R.S. 14:106. “Evidence that a defendant’s genitals were exposed and that he was masturbating indicate that his actions were intended to arouse himself and is sufficient to support an obscenity conviction.” State v. Poche, 05-1042, p. 5 (La.App. 3 Cir. 3/1/06), 924 So.2d 1225, 1230 (citations omitted).

In brief to this court, the defendant asserts that the trial court found Williams and Harold to be credible witnesses. He then asserts that “[t]he testimony of a credible witness, one declared by the Court as impressive and believable, which directly contradicts the veracity of the charge creates reasonable doubt and demands a finding of not guilty.” The defendant further asserts that a rational trier of fact could easily and reasonably conclude that he was attempting to dry and clean his pants while driving. Further, this type of action, “consisting of repeated up and down hand gestures,” could be mistaken as a type of lewd behavior.

The defendant asserts that he is not asking this court to reevaluate the testimony of the witnesses. The defendant further asserts that he accepts, as did the factfinder, that Williams and Harold were telling the truth. The defendant then asks this court to follow the two-part test set out in Rosell v. ESCO, 549 So.2d 840 (La. 1989). The defendant cites Stobart v. State Through Department of |9Transportation and Development, 617 So.2d 880, 882 (La.1993), which discusses Rosell, 549 So.2d 840, as follows:

A court of appeal may not set aside a trial court’s or a jury’s finding of fact in the absence of “manifest error” or unless it is “clearly wrong.” Rosell v. ESCO, 549 So.2d 840 (La.1989). This court has announced a two-part test for the reversal of a factfinder’s determinations:
1) The appellate court must find from the record that a reasonable factual basis does not exist for the finding of the trial court, and
2) the appellate court must further determine that the record establishes that the finding is clearly wrong (manifestly erroneous).
See Mart v. Hill, 505 So.2d 1120, 1127 (La.1987).
This test dictates that a reviewing court must do more than simply review the record for some evidence which supports or controverts the trial court’s finding. Id. The reviewing court must review the record in its entirety to determine whether the trial court’s finding was clearly wrong or manifestly erroneous.
Nevertheless, the issue to be resolved by a reviewing court is not whether the trier of fact was right or wrong, but whether the factfinder’s conclusion was a reasonable one. See generally, Cosse v. Allen-Bradley Co., 601 So.2d 1349, 1351 (La.1992); Housley v. Cerise, 579 So.2d 973 (La.1991); Sistler v. Liberty Mutual Ins. Co., 558 So.2d 1106, 1112 (La.1990). Even though an appellate court may feel its own evaluations and inferences are more reasonable than the factfinder’s, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review where conflict exists in the testimony. Rosell v. ESCO, 549 So.2d 840 (La.1989); Arceneaux v. Domingue, 365 So.2d 1330 (La.1978).

The defendant asserts that the trial court had no reasonable basis for finding him guilty when it believed two opposing testimonies. Additionally, if both Williams and Harold were believed, Harold’s testimony should be given more weight, as he was inside the vehicle at the time of the incident. The defendant asserts that the trial |incourt was clearly wrong in giving more weight to Williams’ testimony. Thus, it was clearly wrong in finding him guilty

The standard cited by the defendant is incorrect, as this is a criminal case and not a civil case. Accordingly, this court will not follow the analysis set out in Rosell, 549 So.2d 840.

The trial court did state that it was “impressed” with Harold’s testimony. The trial court never specifically stated that it found Harold to be “credible.” Furthermore, the trial court stated that Harold was confused about the date on which the incident occurred. Therefore, the trial court did not find that Williams and Harold were both truthful. The trial court made a credibility determination and chose to believe Williams’ testimony. That determination should not be second-guessed by this court. Accordingly, the defendant’s conviction is be affirmed.

CONCLUSION

The defendant’s conviction is affirmed. However, his sentence is vacated and the case remanded for resentencing in the defendant’s presence. At resentencing, the trial court should inform the defendant of the prescriptive period for filing an application for post-conviction relief, as required by La.Code Crim.P. art. 930.8.

CONVICTION AFFIRMED. SENTENCE VACATED. REMANDED WITH INSTRUCTIONS.

      . Louisiana Code of Criminal Procedure Article 835 states:
      In felony cases the defendant shall always be present when sentence is pronounced. In misdemeanor cases the defendant shall be present when sentence is pronounced, unless excused by the court. If a sentence is improperly pronounced in the defendant's absence, he shall be resentenced when his presence is secured.

      . The waiver stated, in pertinent part:
      There is presently a hearing scheduled for a Motion for Judgment of Acquittal, Motion for New Trial, and, alternatively, Sentencing scheduled for June 30, 2008.
      Because of my serious health condition, I wish to waive my appearance at the hearings that are scheduled for June 30, 2008, and allow my attorney of record, Henry H. Lem-oine, Jr., to appear on my behalf, and accept the decisions of the court.