author: MADELINE JASMINE, Judge Pro Tempore.

text:
    Haruo HIRACHI (Deceased) v. Masako (Peggy) KAMATA.
    No. 09-CA-34.
    Court of Appeal of Louisiana, Fifth Circuit.
    May 12, 2009.

      Midori Hirachi, Monterey Park, CA, In Proper Person.
    David I. Courcelle, Attorney at Law, Metairie, LA, for Defendant/Appellee.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., CLARENCE E. McMANUS, and MADELINE JASMINE.
   MADELINE JASMINE, Judge Pro Tempore.

RFrom a judgment denying workers’ compensation death benefits, plaintiff appeals. After thorough consideration of the record and applicable law, we affirm.

The record shows that the decedent, Haruo Hirachi, was hired by Shogun Restaurant in Metairie as a kitchen chef on February 10, 2004. He suffered cardiac arrest while at work on April 10, 2004. He was transported to the hospital by ambulance but could not be revived. An autopsy was performed on April 12, 2004, the report of which plaintiff entered into evidence. The autopsy found the cause of death to be atherosclerotic cardiovascular disease with coronary insufficiency. Specifically, the autopsy found that the right coronary artery had a 95% blockage.

After her request for death benefits was denied, the decedent’s wife, Midori Hira-chi, filed suit against the owner of Shogun Restaurant, Masako (Peggy) |sKamata. Following a trial on the merits, with Mrs. Hirachi representing herself with the aid of a Japanese language interpreter, the trial court took the matter under advisement. The trial court ruled against Mrs. Hirachi, finding that she did not prove that her husband sustained a compensable work injury, and denied benefits in a judgment dated October 28, 2008. This appeal followed.

Law & Analysis

In general, dependents of an injured employee are entitled to receive benefits for any injury that arises in the course and scope of employment that results in the death of the employee. See LSA-R.S. 23:1031 and 1231; Osborn v. Unit Drilling Co., 04-0014, p. 2 (La.App. 1 Cir. 6/25/04), 886 So.2d 495, 496, writ denied, 04-1779 (La.10/15/04), 883 So.2d 1062. The claimant bears the burden of establishing a causal connection between the employment accident and the resulting death by a preponderance of the evidence. Id., 04-0014 at p. 2-3, 886 So.2d at 496.

When the employee’s death is the result of a heart-related or perivascular injury arising out of and in the course of employment, the general requirements do not apply, and the claim is governed by LSA-R.S. 23:1021(8)(e), which provides:

A heart-related or perivascular injury, illness, or death shall not be considered a personal injury by accident arising out of and in the course of employment and is not compensable pursuant to this Chapter unless it is demonstrated by clear and convincing evidence that:
(i) The physical work stress was extraordinary and unusual in comparison to the stress or exertion experienced by the average employee in that occupation, and
(ii) The physical work stress or exertion, and not some other source of stress or preexisting condition, was the predominant and major cause of the heart-related or perivascular injury, illness, or death.

LThe statute limits such compensa-ble heart-related deaths and injuries to those arising out of physical work stress in the job environment. Hatcherson v. Diebold, Inc., 00-3263 (La.5/15/01), 784 So.2d 1284, 1290-91. The stress must be physical, not mental, in nature. Harge v. MCC Specialty Contractors, Inc., 94-790 (La.App. 5 Cir. 2/15/95), 650 So.2d 425, writs denied 95-0611 (La.4/21/95), 653 So.2d 574; 95-0736 (La.4/21/95), 653 So.2d 574.

LSA-R.S. 23:1021(8)(e) also imposes on the claimant the heightened burden of proof by clear and convincing evidence, which is intended to exclude from coverage an employee who just happened to have a heart attack while performing his job. Hood v. Metro Industrial Corp., 00-2158, p. 4 (La.App. 1 Cir.12/28/01), 806 So.2d 848, 851, writ denied, 02-0947 (La.9/80/02), 825 So.2d 1185.

It is well settled that an appellate court may not set aside the factual findings of a workers’ compensation judge in the absence of manifest error or unless they are clearly wrong. Chaisson v. Cajun Bag & Supply Co., 97-1225, p. 13 (La.3/4/98), 708 So.2d 375, 380.

Mrs. Hiraehi testified, through the aid of an interpreter, that she was not present when her husband died, because she was living in California. She received a call from Shogun’s owner that her husband had collapsed and died. She reported that her husband had called her during the two months he was employed at Shogun to report that he had “so much stress” at work. Mrs. Hiraehi claimed that her husband was hired as a kitchen chef, but was required to work as a head chef, a kitchen chef, and a dishwasher, which was too much stress. She claimed that he had told her that on at least one occasion, he was only one of two kitchen chefs working the busy lunchtime shift even though there were 50 employees at the restaurant.

|flMrs. Hiraehi told the court that she spoke with several of her husband’s coworkers after he died, while she was trying to investigate his death. She said that they told her that her husband worked at least 56 hours per week, and some weeks he worked shifts of at least eleven hours, four days a week.

On cross examination, Mrs. Hiraehi testified that her husband was supposed to quit Shogun on April 10, 2004, the day he died.

Mrs. Hiraehi submitted the following evidence in support of her claim, besides the autopsy report. She introduced the decedent’s medical record from East Jefferson Hospital from the day of his death. Her third exhibit was a copy of a letter she sent to the workers’ compensation judge, which was admitted over defense counsel’s objection. She submitted a bill from a life insurance policy that Mr. Hiraehi purchased in 2002, reasoning that it proved he was healthy if he was allowed to purchase the insurance. She also submitted a lab report of blood work on her husband, dated 1999, also to prove that he was in good health prior to his death.

The defense called Mr. Albert Courcelle, Shogun’s bookkeeper and payroll manager. He testified that he had been employed in that position since 2001, and that he was very familiar with conditions in the kitchen because he had to pass through the kitchen to get to his office. He testified that Mr. Hiraehi had wanted to quit on April 3, but that he told Mr. Courcelle that his wife wanted him to earn more money, so he agreed to stay until April 10. According to both Mrs. Hiraehi and Mr. Courcelle, Mr. Hiraehi had plane tickets home to California for April 12, 2004.

| ¡¡Mr. Courcelle testified that all the chefs were salaried, and that all worked generally the same hours, which were 5 days per week, 8-10 hours per shift, depending on the season. He stated that more chefs worked on the weekends, since the restaurant was busier then. (April 10 was a Saturday.) Mr. Courcelle stated that Mr. Hirachi’s duties were the same as all the other chefs’ duties. He explained that all the chefs washed their own pots and utensils prior to their shift, but that they did not wash dishes, as the restaurant employed a dishwasher for that purpose. He also explained that separate people were hired for the “prep” work. Mr. Courcelle was emphatic that Mr. Hirachi was not working three different jobs, as his widow claimed, but only the job of kitchen chef, with the same duties as the other kitchen chefs.

Mr. Courcelle testified that Mr. Hirachi never complained to him about being overwhelmed or overworked. He also testified that February and March were the restaurant’s slowest time, as compared to the summer season (June, July, and August), when the restaurant was traditionally much busier.

Considering the above-cited law and the record, while we have sympathy for the plaintiffs loss, we find no manifest error in the trial court’s conclusion that plaintiff failed to prove that decedent suffered a compensable on-the-job injury. Plaintiffs evidence did not satisfy her “clear and convincing” burden of proof that her husband suffered extraordinary physical stress while on the job. Her only evidence about the physical conditions of her husband’s job was hearsay. Also, her only evidence regarding her husband’s health was several years old (the 1999 lab report), and thus was of little evidentiary value.

Mr. Courcelle, on the other hand, demonstrated personal knowledge of Mr. Hira-chi’s working conditions that Mrs. Hirachi did not counter. He established, | .¡contrary to Mrs. Hirachi’s claims, that Mr. Hirachi’s working conditions were no more physically stressful than other kitchen chefs at the restaurant.

In her appellate brief, plaintiff asks this court to give her her husband’s time card from Shogun. No time cards were entered into evidence, only Mr. Hirachi’s pay stubs, presumably because he was salaried and was not paid by the hour. In any event, this court cannot do what plaintiff asks. This court is unable to review evidence not first admitted in the trial court.

Mrs. Hirachi also asks this court to look again at the autopsy report. She claims in brief that a physician told her that when a man dies “like this,” usually a few blood vessels are blocked, but in her husband’s case, only one vessel was blocked. This court has reviewed the autopsy report, which clearly says that the decedent died from atherosclerotic cardiovascular disease with coronary insufficiency, noting that only one blood vessel was 95% blocked. The autopsy report’s conclusion clearly contradicts the opinion of the unknown and unnamed physician, who did not testify.

The issue before this court is whether the trial court erred in finding that plaintiff failed to carry her burden of proof under LSA-R.S. 23:1021(8)(e), by clear and convincing evidence, that the physical work stress was extraordinary and unusual in comparison to the stress or exertion experienced by the average employee in that occupation. As stated above, we find no manifest error in the trial court’s judgment.

AFFIRMED.

      . The suit’s title reflects the name of the decedent, although his widow, Midori Hirachi, filed the suit in proper person.

      . In her brief, Mrs. Hiraehi claims that Shogun tried to hide her husband’s death, pointing to inaccurate information in his death certificate. However, it appears that she argues that they tried to misrepresent his death, since she admits that the owner of Shogun notified her of her husband’s death on the same day. The trial court made no finding in this regard, and we see no evidence in this record that Shogun tried to misrepresent Mr. Hirachi’s death.

      . The trial court did not comment upon this 1999 lab report, but it is noted that therein that Mr. Hiraehi had "high” cholesterol, which is generally known as a risk factor in cardiovascular disease.

      . Mr. Hirachi’s pay stubs were entered into evidence.

      . The statute has a second prong: a plaintiff must prove that the physical work stress or exertion, and not some other source of stress or preexisting condition, was the predominant and major cause of the heart-related or perivascular injury, illness, or death. This prong is only reached if the requirements of the first prong are met, that the physical stress was unusual and extraordinary. Since die plaintiff did not meet this first burden of proof, we do not reach the second.


source: Caselaw Access Project

author: FREDERICKA HOMBERG WICKER, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Brenda A. WEAVER.
    No. 08-CA-1155.
    Court of Appeal of Louisiana, Fifth Circuit.
    May 12, 2009.
    Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Anne Wallis, Vincent Paciera, Assistant District Attorneys, Gretna, LA, for Plaintiff/Appellee.
    Kenneth J. Beck, Attorney at Law, Gretna, LA, for Defendant/Appellant.

      Panel composed of Judges SUSAN M. CHEHARDY, FREDERICKA HOMBERG WICKER, and JEROME M. WINSBERG, Pro Tempore.
   FREDERICKA HOMBERG WICKER, Judge.

12This is a bail bond forfeiture proceeding in which the commercial surety Bankers Insurance Company (“Bankers”) filed a devolutive appeal from an August 27, 2008 judgment denying its Motion to Set Aside and Nullify the Judgment of Bond Forfeiture. For the foregoing reasons, we reverse.

FACTS AND PROCEDURAL HISTORY

The relevant facts are these. On December 23, 2003, Bankers Insurance Company, through its agent Bail Bonds Unlimited, posted a bond for the release of Brenda Weaver (“the defendant”) from the Jefferson Parish Correctional Center. The bond lists the defendant’s address as “2839 Salem St. Kenner, LA.” There was no apartment number or designation on the bond at that time. On May 19, 2004, the defendant was charged by bill of information with one count of cruelty to a juvenile, a violation of La. R.S. 14:93.

Several attempts were made to serve the defendant with a subpoena in order to compel her appearance at arraignment on July 7, 2004. The Clerk of Court’s office first issued a subpoena on June 3, 2004. The June 3 subpoena, which listed |3the defendant’s address as “2839 Salem St. Kenner, LA,” was returned after five unsuccessful attempts at service. On July 7, 2004, the defendant failed to appear at arraignment, the trial court reissued the subpoena, and arraignment was rescheduled for August 4, 2008. The July 7 subpoena also listed the defendant’s address as “2839 Salem St. Kenner, LA” and was also returned after five unsuccessful attempts at service. On August 4, 2004, the defendant again failed to appear at arraignment and the trial court ordered the surety to produce the defendant. A third subpoena -was issued on August 9, 2004, which again listed the defendant’s address as “2839 Salem St. Kenner, LA.” The defendant was personally served with the August 9 subpoena.

The defendant pleaded not guilty at arraignment on October 13, 2004. On October 21, 2004, a subpoena was issued compelling the defendant’s presence at trial, which was scheduled to begin on December 1, 2004. The October 21 subpoena listed the defendant’s address as “2839 Salem St. Kenner, LA.” The October 21 subpoena was returned to the Clerk of Court’s office on October 25 with the handwritten notation “need apt. number.” The defendant appeared before the court on December 1. The record contains no discussion of the defendant’s apartment number, if any, and no change of address form was filed in the record on that date. Trial was continued until February 14, 2005. On February 14, 2005, the defendant again appeared before the court in response to a subpoena which was returned to the clerk’s office with the handwritten notation “need apt. number.” Again, there was no discussion of the defendant’s apartment number, if any, and no change of address form was filed in the record. Trial was continued until April 11, 2005. On February 24, 2005, the clerk’s office again issued a subpoena for the purpose of compelling the defendant’s presence at trial. The Februai'y 24 subpoena listed the defendant’s address as “2839 Salem St. Apt. B.” The February 24 Lsubpoena was the first subpoena in the instant case to list an apartment designation. On February 28, 2005, the February 24 subpoena was returned after five unsuccessful attempts at service.

Four subsequent subpoenas were issued to the defendant at “2889 Salem St. Apt. B.” None were successfully delivered. On December 2, 2005, the trial judge forfeited the defendant’s bond when the defendant failed to appear for trial. The record indicates that the return on the subpoena issued to the defendant- for the December 2, 2005 court date noted “Not at this address per resident.” The defendant’s address on the subpoena was “2839 Salem Street, Apt. B.”

On January 31, 2006, Bankers filed a Motion to Set Aside Judgment of Bond Forfeiture, which came to hearing on May 15. The trial court granted Bankers’ motion and relieved Bankers of all further obligations, terms, and conditions under the defendant’s original bond.

The state filed a devolutive appeal to this Court. On January 16, 2007, we reversed and remanded. State v. Weaver, 06-576 (La.App. 5 Cir. 1/16/07), 951 So.2d 421. We reasoned that “[o]ur determination of the issue in this case ... turns on findings of whether [the defendant] provided an incorrect address on her bond, in violation of LSA-C.Cr.P. art. 322, or, in the alternative, whether the State failed to provide service to a valid address pursuant to LSA-C.Cr.P. art. 344.” Id. at 425. At that time, there was no evidence in the record to support how “Apt. B” was added to the Salem Street address. Id. Therefore, we remanded the case for an eviden-tiary hearing and instructed the trial court to address the following issues:

[Wjhether [the defendant] breached her bail obligation by failing to provide a correct address on her bond; why service on [the defendant] at the Salem addi-ess by the Jefferson Parish Sheriffs Office, without further designation of an apartment number, was no longer possible after service was twice successful at the Salem address alone, and; by what means was the apartment number added to subpoenas sent to [the defendant] after a certain lfipoint in time, specifically, was the apartment number added by [the defendant] or the State?
Id,.

The evidentiary hearing was held on August 20, 2008. The first witness to testify was Deputy Carlos Fastbender, a process server with the Jefferson Parish Sheriffs Office. Deputy Fastbender testified that he served all of the subpoenas in the instant case and that he was the one that wrote the notation “need apt. number” on several of the subpoenas. Deputy Fastbender told the court that he had no recollection of serving the defendant, that he did not recall what apartment the defendant lived in, and that he did not recall whether 2839 Salem St. was an apartment complex. Deputy Fastbender testified that he did not have the authority to change the address of a subpoena and that he did not change the address of the subpoenas in the instant case. He also remarked that the notation “no longer at that address” meant that “when someone answered the door at Apartment B, they said that [the defendant] no longer resided] there.” Christine Knox, a criminal minute clerk with the Jefferson Parish Clerk of Court, testified after Deputy Fastbender. Ms. Knox testified that she had no knowledge of who added the “Apt. B” designation to the subpoenas. She told the court that neither the defendant nor the state would have been able to make the change.

At the conclusion of the hearing, the trial court denied Bankers’ Motion to Set Aside Judgment of Bond Forfeiture. The trial court reasoned that the defendant “breached her bail obligation by failing to provide a correct address on her bond ... If in fact all the process server had was 2839 Salem Street, then [the defendant] did not do what she needed to do to provide an apartment number or letter so that she could be properly served with the subpoena.” This timely appeal followed.

| f;B ankers assigns two errors to the proceedings below. First, Bankers alleges that the trial court erred in denying the Motion to Set Aside Judgment of Bond Forfeiture because the state did not prove that the defendant was provided notice of the “time fixed for appearance” under La. 15:85(1). Second, Bankers alleges that the trial court erred in finding that the defendant gave an incorrect address on her bond.

FIRST ASSIGNMENT OF ERROR

In its first assignment of error, Bankers contends that the trial court erred in denying the Motion to Set Aside Judgment of Bond Forfeiture because the state did not prove that the defendant was provided notice of the “time fixed for appearance” under La. 15:85(1).

The Louisiana Bond Forfeiture Process

La. R.S. 15:85 sets forth the statutory procedure for bond forfeiture proceedings. La. R.S. 15:85 provides that “[a]ll bonds taken to secure the appearance of any person before any court ... shall be forfeited and collected” according to legislatively mandated forfeiture procedures. La. R.S. 15:85(1) authorizes the trial judge to render judgment decreeing the forfeiture of the bond under the following conditions:

If at the time fixed for appearance the defendant fails to appear and answer when called, the judge, on motion of the prosecuting attorney, upon hearing of proper evidence including: the bail contract; the power of attorney if any; and the notice to the defendant and the surety as required by Article 344 of the Code of Criminal Procedure, shall immediately and forthwith issue a warrant for the arrest of the person failing to appear and order a judgment decreeing the forfeiture of the bond and against the defendant and his sureties in solido for the full amount of the bond, (emphasis added)
La. C. Cr. P. art. 344 provides, in pertinent part:
|7B. (1) When a bail bond does not fix the appearance date, and the presence is required of a person who has been released on bail, the defendant and his personal surety or the commercial surety or the agent or bondsman who posted the bond for the commercial surety, shall be given written notice of the time, date, and place the principal is required to appear.
(2) The notice may be delivered to the defendant and the personal surety or the commercial surety or the agent or bondsman who posted the bond for the commercial surety by an officer designated by the court, at least two days prior to the day set for the appearance; or this notice may be mailed by United States first class mail to the defendant and his personal surety or the commercial surety or the agent or bondsman who posted the bond for the commercial surety, at least three days prior to the date set for the appearance. The notice shall be mailed to the defendant and his personal surety or the commercial surety or the agent or bondsman who posted the bond for the commercial surety to the address designated pursuant to Article 322
(emphasis added)
La. C. Cr. P. art. 322 provides, in pertinent part:
A. The defendant when signing a bail bond shall write under his signature the address at which he resides. The address shall be conclusively presumed to continue for all proceedings on the bond, until he files in the proceeding in which the bond was given a written declaration changing the address.

(emphasis added)

Thus, when a defendant fails to appear at the time fixed for appearance, the judge or prosecutor may move to forfeit the defendant’s bond. However, before a bond can be forfeited, the state must introduce the bail contract, the power of attorney if any, and notice to the defendant and the surety into evidence. The state must also prove that the defendant was served with the notice of the forfeiture hearing at “the address at which he resides” pursuant to La. C. Cr. P. art. 322. The address provided by the defendant is conclusively presumed to continue for all proceedings on the bond until the defendant files a written declaration changing the address.

Is After the trial court signs judgment of bond forfeiture, notice must be mailed to the defendant, the defendant’s personal and commercial sureties, and the bondsman. La. R.S. 15:85(3)(a). Failure to mail proper notice of the signing of the judgment within sixty days of the defendant’s failure to appear releases the sureties of all obligations under the bond. La. R.S. 15:85(3)(c); See also State v. Williams, 07-648 (La.App. 5 Cir. 1/22/08), 977 So.2d 154 (holding that the sixty day period under La. R.S. 15:85(3)(c) begins to run on the initial date the defendant failed to appeal-, not the last date on which the defendant failed to appear).

The defendant and his sureties shall be entitled to bring defenses and actions in nullity by use of summary proceedings within sixty days from mailing the notice of the signing of the judgment of bond forfeiture. La. R.S. 15:85(5). However, defenses based upon La. C. Cr. P. art. 345 and La. R.S. 15:87 may be raised “by use of summary proceedings ... within six months from mailing the notice of the signing of the judgment of bond forfeiture.” La. R.S. 15:85(5). La. R.S. 15:87 A provides that the six month delay outlined in La. R.S. 15:85(5) applies when the defendant “has a physical disability, illness, or injury,” when the defendant “is being detained in the jail or penitentiary of another jurisdiction,” or when the defendant “is serving in the armed forces of the United States.” La. C. Cr. P. art. 345 provides that the six month delay applies when the sui*ety “surrender[s] the defendant or the defendant ... surrender^] himself, in open court or to the officer charged with his detention, at any time prior to forfeiture or within the time allowed by law for setting aside a judgment of forfeiture of the bail bond.”

Bond forfeitures are not favored by law. State v. McLaurin, 05-857 (La.App. 5 Cir. 3/28/06), 927 So.2d 570, 573. The state must strictly comply with |flthe statutory procedure in bond forfeiture actions in order to obtain a valid bond forfeiture. Id.

Discussion

In the instant case, the defendant was not served with notice of the impending bond forfeiture hearing. The record clearly indicates that the return on the subpoena issued to the defendant for the December 12, 2005 forfeiture hearing noted “Not at this address per resident.” The subpoena in question was issued to the defendant at “2839 Salem St., Apt. B, Kenner, LA.” The address on the bail bond contained in the record is “2389 Salem St., Kenner, LA.” The defendant filed no written declaration changing the address into the record as required by La. C. Cr. P. art. 322.

Bankers contends that this fact should end this Court’s discussion. According to Bankers, because the state did not introduce “notice to the defendant” into evidence as required by La. R.S. 15:85, we must reverse the judgment of the trial court. However, La. C. Cr. P. art. 322 obligates a criminal defendant to provide the bondsman with the “address at which he resides” in order to secure an appearance bond. What, then, should be done when the defendant submits an incorrect or misleading address to the bondsman?

Unfortunately, the Louisiana Supreme Court has never addressed this issue. The state urges this Court to consider the holding of State v. Anthony, 525 So.2d 247 (La.App. 1 Cir.1988). In Anthony, the First Circuit addressed the issue of whether a bond forfeiture was valid when notice of the defendant’s court dates had not been served on him because he had supplied the court with two false addresses. The court concluded:

In any event, we do not interpret R.S. 15:85 as requiring actual notice. Due process under article 1, § 2 of the Louisiana Constitution of 1974 and the fifth and fourteenth amendments of the United States Constitution requires | inthat in an action to deprive a person of life, liberty, or property, the person must be given notice of the proceedings and a hearing appropriate to the nature of the case. Due process does not demand that a party actually receive the notice, it only requires that the method of service used be reasonably calculated to give the party actual notice, (citation omitted). In the instant case, the state proved that it sent defendant notice of the hearing dates to the addresses he furnished. It would be a travesty of justice for this court to find that because Anthony thwarted the state’s efforts to deliver the notices to him, he was never obligated to appear in court. Accordingly, defendant’s failure to receive actual notice of the second arraignment date does not prevent the state from seeking the forfeiture of Sunbelt’s bond due to his nonappearance.
Anthony, 525 So.2d at 249.

We disagree with the reasoning of Anthony and its progeny. La. R.S. 15:85 provides that a trial judge “shall immediately and forthwith” revoke a defendant’s bond upon hearing of proper evidence including the bail contract, the power of attorney if any, and the notice to the defendant. The words of the statute are clear.

In State v. Milton, 03-47 (La.App. 5 Cir. 4/29/03) (unpublished opinion), the defendant failed to appear at arraignment, and the trial court granted the state’s motion to forfeit his bond. The service return indicated that the sheriffs office did not serve the defendant due to “Locked Gate, No Access.” Milton, at *2. The surety filed a Motion to Set Aside Judgment of Bond Forfeiture and Petition for Nullity of Judgment, contending that the state did not meet its burden under La. R.S. 15:85. The trial court granted the motion, and this Court affirmed. Id. at *3. We expressly rejected the reasoning of Anthony, however, we noted:

We agree that it would be inequitable, unfair, and unjust to allow a defendant to escape his obligation to appear in court by avoiding service of process and providing false information regarding his residence. We further agree that the state is entitled to seek bond forfeiture when it has been established that the failure to effectuate service is due to the defendant providing an incorrect address or clearly avoiding service. However,, we find that the state has not established this in this case. The record does not indicate that the address given by the defendant did not exist or was vacant. Rather, the record reveals that the sheriff attempted to serve the defendant on one occasion and there was no access due to a locked gate.
|11Id. at *6 (emphasis added).

We reaffirm the principles set forth in Milton and hold that the state has not met its burden under La. R.S. 15:85. The record clearly indicates that personal service was made on the defendant at “2839 Salem St.” This Court acknowledged as such in the opinion remanding Bankers’ first appeal. Weaver, 951 So.2d at 425. Thus, the defendant arguably did not provide the bondsman with an incorrect address, nor was she trying to “clearly evade service.” At some point, the address on the bond was changed to “2839 Salem St. Apt. B.” There is no evidence in the record indicating that the defendant made a “written declaration changing the address” of her bond as required by La. C. Cr. P. art. 322. At the hearing on Bankers’ Motion to Set Aside Judgment of Bond Forfeiture it could not be determined who added the “Apt. B” designation to the subpoenas. Nor could Deputy Fastbender recall whether 2839 Salem St. is an apartment building. Accordingly, we hold that the state has not met its burden of introducing “notice to the defendant and surety” into evidence under La. R.S. 15:85. The tidal court erred in denying Bankers’ Motion to Set Aside Judgment of Bond Forfeiture.

SECOND ASSIGNMENT OF ERROR

In the alternative, Bankers alleges that the trial court erred in finding that the defendant gave an incorrect address on her bond and therefore breached her bail obligation. There is no need to consider this assignment of error, as we hold that Bankers’ first assignment of error has merit.

| ^CONCLUSION AND DECREE

For the foregoing reasons, the judgment of the trial court is reversed. Bankers’ January 31, 2006 Motion to Set Aside Judgment of Bond Forfeiture is granted. The state is assessed with the costs of these proceedings.

REVERSED AND RENDERED.


author: SUSAN M. CHEHARDY, Judge.

text:
    STATE of Louisiana v. Eugene CAFFREY.
    No. 08-KA-717.
    Court of Appeal of Louisiana, Fifth Circuit.
    May 12, 2009.

      Paul D. Connick, Jr., District Attorney, Twenty-Fourth Judicial District, Parish of Jefferson, Terry M. Boudreaux, Juliet Clark — Appellate Counsel, Jeffrey J. Hand — Trial Counsel, Assistant District Attorney, Gretna, LA, for Appellee, State of Louisiana.
    Kevin V. Boshea, Attorney at Law, Me-tairie, LA, for Appellant, Eugene Caffrey.
    Panel composed of Judges SUSAN M. CHEHARDY, WALTER J. ROTHSCHILD, and MADELINE JASMINE, Pro Tempore.
   SUSAN M. CHEHARDY, Judge.

|2On April 27, 2006, the Jefferson Parish District Attorney’s office filed a bill of information charging defendant, Eugene Caffrey, with possession of a firearm by a convicted felon, in violation of La. R.S. 14:95.1. On November 22, 2006, defendant entered a plea of not guilty. Subsequently, defendant filed several pre-trial motions, including a motion to suppress evidence. On February 21, 2008, defendant’s motion to suppress evidence was denied after a hearing.

On March 25, 2008, defendant proceeded to trial by jury; the twelve-person jury found him guilty as charged. The trial court subsequently sentenced defendant to fifteen years at hard labor, without the benefit of parole, probation, or suspension of sentence. That day, defendant verbally moved for appeal. Subsequently, defendant filed post-trial motions, including a motion for new trial, a motion for reconsideration of sentence, and a motion for appeal. Defendant’s motion for appeal was granted on May 9, 2008. On October 7, 2008, the trial judge denied defendant’s motion for reconsideration of sentence and motion for new trial. This appeal follows.

At trial, the State elicited testimony from three Jefferson Parish Sheriffs officers that were at the scene of the incident in question. Jefferson Parish Deputy 1 ,¡Brent Coussou testified that, in the early afternoon of March 25, 2006, he was assisting at the scene of a homicide in Marrero, when he observed a young African-American man quickly approaching the crime scene in an aggressive manner. According to Deputy Coussou, the man rushed toward the edge of the crime scene. As Deputy Coussou stopped the young man from crossing the crime scene tape, he shouted expletives and threw his hands in the ah'. The man, who was agitated, spun around and walked away from Deputy Coussou. As he retreated, Deputy Cous-sou saw the “bottom butt piece to the magazine” of a semiautomatic handgun protruding from the man’s right jacket pocket.

Deputy Coussou yelled “gun,” drew his weapon, and ordered the man to halt. The man, later identified as defendant, shed his jacket, which dropped to the ground, and ran into the crowd gathered at the murder scene. Deputy Coussou apprehended defendant within six to seven feet of the edge of the crime scene. Meanwhile, another officer, Lieutenant Joshua Wingrove, retrieved the discarded jacket and recovered the firearm from the pocket. The gun was secured and turned over to a crime scene technician, who testified to the chain of custody and identified the gun at trial.

Defendant testified at trial and admitted going to the murder scene. He explained that he lived around the corner from the scene and that the homicide victim was his friend. Defendant denied that he walked up to the crime tape and caused a commotion. He further denied wearing a jacket or having a gun while at the murder scene. Defendant also denied running from the police. He testified he walked away from the scene because he had outstanding traffic attachments. After hearing the testimony and observing the evidence, the twelve-person jury found defendant guilty of possession of a firearm by a convicted felon.

|,!On appeal, defendant raises four assignments of error: first, defendant argues that the jury respectfully did err in finding the Defendant guilty as charged; second, defendant argues that the trial court did respectfully err in the denial of the Motion for New Trial; third, defendant argues that the district court erred in the denial of the Motion to Reconsider Sentence; and, fourth, defendant argues that the sentence in this matter is excessive and unduly harsh.

In his first assignment of error, defendant argues that the evidence was insufficient to prove he possessed a firearm, an essential element of the charged offense. Defendant maintains that the testimony from the State’s witnesses, which was not independently corroborated, was so inconsistent that a rational trier of fact could not have found the evidence sufficient to support a conviction.

The standard of review for the sufficiency of the evidence to uphold a conviction is whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could conclude that the State proved the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979). The requirement that the evidence be viewed in the light most favorable to the prosecution requires the reviewing court to defer to “ ‘the actual trier of fact’s rational credibility calls, evidence weighing and inference drawing.’ ” State v. Marcantel, 00-1629 (La.4/3/02), 815 So.2d 50, 56. “The reviewing court is not permitted ‘to decide whether it believes the witness or whether the conviction is contrary to the weight of the evidence.’ ” Id. It is not the appellate court’s function to re-evaluate the credibility of witnesses or reweigh the evidence. Id.; State v. Taylor, 07-474 (La.App.5 5 Cir. 12/27/07), 975 So.2d 10, 14, writ denied, 08-224 (La.9/19/08), 992 So.2d 949.

The trier of fact can accept or reject, in whole or in part, the testimony of any witness. State v. Delagardelle, 06-898 (La.App. 5 Cir. 4/11/07), 957 So.2d 825, 830, writ denied, 07-1067 (La.11/21/07), 967 So.2d 1154. In the absence of internal contradiction or irreconcilable conflict with physical evidence, one witness’s testimony, if believed by the trier of fact, is sufficient to support a requisite factual finding. State v. Benoit, 07-35 (La.App. 5 Cir. 5/29/07), 960 So.2d 279, 284.

In this case, the twelve-person jury found defendant guilty of violating La. R.S. 14:95.1, which makes it unlawful for a person who has been convicted of certain felonies to possess a firearm for a period of time after the conviction. To sustain a conviction under La. R.S. 14:95.1, the State must prove: (1) possession of a firearm, (2) prior conviction for an enumerated felony, (3) absence of the ten-year statutory limitation period, and (4) the general intent to commit the crime. State v. Lee, 02-704 (La.App. 5 Cir. 12/30/02), 836 So.2d 589, 593, writ denied, 03-535 (La.10/17/03), 855 So.2d 755.

Here, defendant stipulated that he had a 2002 felony conviction for possession of cocaine. The State introduced a certified copy of that prior conviction. Thus, the State proved prior conviction of an enumerated felony no more than ten years before this incident.

To prove possession of the firearm, the State offered the testimony of Deputy Coussou. Deputy Coussou testified he saw the butt of a gun protruding from defendant’s jacket pocket. Lieutenant Wingrove testified that he retrieved the defendant’s discarded jacket and found a gun in the pocket, which he secured.

| Jn support of his argument that the evidence proven against him was insufficient to establish possession of a firearm, defendant contends that Deputy Coussou contradicted himself on whether defendant ran up to the crime scene tape waving his hands in the air or walked up with his hands in his pockets. He further asserts there was conflicting testimony as to which officer secured the gun. He finally maintains that the officers’ inconsistent descriptions of the alleged jacket, which was never produced, supports his contention that the evidence was insufficient to convict him for possession of a firearm.

After reviewing the entire record, we find defendant’s assertions are mischarac-terizations of the testimony presented at trial. Further, if defendant’s assertions were accurate, his claim goes to the weight of the evidence, not the sufficiency. The trier of fact can accept or reject, in whole or in part, the testimony of any witness. State v. Delagardelle, 957 So.2d at 830. In the absence of internal contradiction or irreconcilable conflict with physical evidence, one witness’s testimony, if believed by the trier of fact, is sufficient to support a requisite factual finding. State v. Benoit, 960 So.2d at 284. Clearly, in this case, the jury found the officers’ testimony was more credible than the defendant’s testimony. It is not the appellate court’s function to re-evaluate the credibility of witnesses or reweigh the evidence. State v. Taylor, 975 So.2d at 14. Accordingly, we agree that a rational trier of fact could conclude that the State proved the essential elements of the crime, beyond a reasonable doubt, to convict this defendant of possession of a firearm by a convicted felon. See, State v. East, 99-1379, pp. 6-7 (La.App. 5 Cir. 7/25/00), 768 So.2d 173, 177, writ denied, 01-3025 (La.10/25/02), 827 So.2d 1167.

In his second assignment of error, defendant argues that the trial court erred in denying his motion for new trial. He specifically states, “Furthermore, that the |7verdict in this case is contrary to the law the evidence and the testimony. As such the Motion for New Trial should have been granted.”

Restating an assigned error in brief without argument or citation of authority does not constitute briefing. U.R.C.A. 2-12.4; State v. Lauff, 06-717, p. 9 (La.App. 5 Cir. 2/13/07), 953 So.2d 813, 819; State v. Fernandez, 03-987, p. 9 (La.App. 5 Cir. 12/30/03), 864 So.2d 764, 770. Furthermore, the denial of a motion for new trial on the basis that the verdict is contrary to the law and evidence presents nothing for review on appeal. State v. Hampton, 98-331, p. 12 (La.4/23/99), 750 So.2d 867, 880, cert. denied, 528 U.S. 1007, 120 S.Ct. 504, 145 L.Ed.2d 390 (1999). Finally, if we were to address the merits of this assignment, we would find no error in the denial of defendant’s motion for new trial, which was filed after sentencing and was, therefore, untimely. La.C.Cr.P. art. 853; State v. Jones, 05-735, p. 12 (La.App. 5 Cir. 2/27/06), 924 So.2d 1113, 1119-20, writ denied, 07-151 (La.10/26/07), 966 So.2d 567.

In his third and fourth assignments of error respectively, defendant argues that the district court erred in denying his Motion to Reconsider Sentence and that his sentence is excessive and unduly harsh. In these two assignments of errors, which defendant argues together, defendant contends his fifteen-year sentence, which is the maximum statutory sentence, is excessive. He maintains that he is not the worst type of offender and there is, therefore, no legal justification for the imposition of the maximum sentence. He claims that he only has one prior conviction and no aggravating circumstances.

The State responds that defendant’s sentence is not excessive, but rather is illegally lenient, because the trial court failed to impose the mandatory fine. The State also notes that defendant has a second conviction for possession of cocaine for an offense be committed in 2007 while awaiting trial on this charge.

|sThe sentencing range for a defendant found guilty of possession of a firearm by a convicted felon is imprisonment at hard labor for not less than ten nor more than fifteen years, without the benefit of parole, probation or suspension of sentence and a mandatory fine between $1,000 and $5,000. La. R.S. 14:95.1(B). The trial judge imposed the maximum prison sentence of fifteen years at hard labor without the benefit of parole, probation or suspension of sentence on defendant. The trial judge did not impose a fine.

At the hearing on defendant’s motion to reconsider sentence, he argued that he was not the worst type of offender and he only had one prior conviction for possession of cocaine. The trial judge denied the motion for reconsideration of sentence because the gun in question was fully loaded, defendant had a “less than cooperative attitude” throughout trial and sentencing, and defendant was “less than remorseful with regard to his actions.”

The Eighth Amendment to the United States Constitution and Article I, § 20 of the Louisiana Constitution prohibit the imposition of excessive punishment. Although a sentence is within statutory limits, it can be reviewed for constitutional excessiveness. State v. Smith, 01-2574 (La.1/14/03), 839 So.2d 1, 4. A sentence is considei-ed excessive if it is grossly disproportionate to the offense or imposes needless and purposeless pain and suffering. Id. A sentence is grossly disproportionate if, when the crime and punishment are considered in light of the harm done to society, it shocks the sense of justice. State v. Lawson, 04-334 (La.App. 5 Cir. 9/28/04), 885 So.2d 618, 622.

A trial judge has broad discretion when imposing a sentence and a reviewing court may not set a sentence aside, absent a manifest abuse of discretion. The issue on appeal is whether the trial court abused its discretion, not whether another | sentence might have been more appropriate. State v. Dorsey, 07-67 (La.App. 5 Cir. 5/29/07), 960 So.2d 1127, 1130.

Three factors are considered in reviewing a trial court’s sentencing discretion: 1) the nature of the crime, 2) the nature and background of the offender, and 3) the sentence imposed for similar crimes by the same court and other courts. State v. Stewart, 03-920, p. 16 (La.App. 5 Cir. 1/27/04), 866 So.2d 1016, 1027-28, writ denied, 04-449 (La.6/25/04), 876 So.2d 832. The reviewing court must keep in mind that maximum sentences should only be imposed on the most egregious offenders. State v. Guajardo, 428 So.2d 468, 473 (La.1983).

In State v. Warmack, 07-311, p. 8 (La.App. 5 Cir. 11/27/07), 973 So.2d 104, 109, this Court upheld a maximum 15-year sentence for the defendant’s possession of a firearm by a felon conviction. The defendant had three prior convictions for various drug offenses. Additionally, defendant ran from the police and the gun he possessed was fully loaded.

In this case, defendant argues that he had only one prior conviction, which was for possession of cocaine. The record, however, reflects that, on the day that defendant was sentenced for possession of a firearm by a felon, he also pled guilty to two more drug offenses, possession of cocaine and possession of marijuana. Further, the defendant in our case, like the defendant in Warmack, showed a disregard for police authority. He rushed into a crowd at a murder scene with a fully-loaded gun. He ran when pursued by the police, which put innocent bystanders in jeopardy. He also admitted to committing two drug possession offenses while he was awaiting trial on the current charge. We cannot say that the trial court abused its discretion in imposing the maximum sentence for defendant’s conviction.

| mFinally, as is our practice, we have reviewed the record for errors patent, according to La.C.Cr.P. art. 920. The trial judge did not impose the fine of “not less than one thousand dollars nor more than five thousand dollars” mandated by La. R.S. 14:95.1(B). Thus, the trial judge did not impose an excessive sentence, but rather an illegally lenient sentence. Although the State notes the error in its brief on appeal, it neither objected at the time of sentencing nor appealed the error. While this Court has the authority to correct an illegally lenient sentence on its own motion, it is permissive l’ather than mandatory. La.C.Cr.P. art. 882; State v. Williams, 00-1725 (La.11/28/01), 800 So.2d 790; State v. Turner, 03-325 (La.App. 5 Cir. 6/19/03), 850 So.2d 811, 819. In this case, we will refrain from taking action on our own motion.

In conclusion, we find no merit in defendant’s assignments of error and no errors patent requiring corrective action. Based on the foregoing, defendant’s conviction and sentence are affirmed.

AFFIRMED.

      . The issue of sufficiency of die evidence is properly raised by a defendant in a motion for post-verdict judgment of acquittal at the close of the State’s case. La.C.Cr.P. art. 821; State
        v. Hooker, 05-251, p. 13 (La.App. 5 Cir. 1/7/06), 921 So.2d 1066, 1074. Although defendant filed a motion for new trial, he did not file a motion for post-verdict judgment of acquittal under La.C.Cr.P. art. 821. There is a procedural distinction between the two motions. See State v. Robinson, 04-964, p. 4 (La.App. 5 Cir. 2/15/05), 896 So.2d 1115, 1120, n. 3. Nonetheless, both the Louisiana Supreme Court and this Court have addressed the constitutional sufficiency of the evidence where only a motion for new trial was filed. Id.; State v. Lyles, 03-141 (La.App. 5 Cir. 9/16/03), 858 So.2d 35, 50.


text:
    STATE of Louisiana, DEPARTMENT OF SOCIAL SERVICES in the Interest of P.B. v. Michael REED.
    No. 08-CA-1309.
    Court of Appeal of Louisiana, Fifth Circuit.
    May 12, 2009.
    Paul D. Conniek, Jr., District Attorney, Joseph R. McMahon, Jr., John D. Fitzmor-ris, Jr. — Appellate Counsel, Assistant District Attorneys, Twenty-Fourth Judicial District, Parish of Jefferson, Harvey, Louisiana, for the Appellee, State of Louisiana, Department of Social Services.
    Christine F. Remy, Tracy G. Sheppard — Appellate Counsel, Jessica D. Van Vrancken, Attorneys at Law, Gretna, LA, for Appellant, Michael Reed.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., SUSAN M. CHEHARDY, and MADELINE JASMINE, Pro Tempore.
   SUSAN M. CHEHARDY, Judge.

|2On appeal, M.R. argues that the juvenile court judge erred in finding that he was the biological father of the child, P.B., and in finding that it was in the best interest of said child to establish paternity and support.

The minor male child whose biological paternity is at issue was born on January 22, 2001. At the time that the child was conceived, his mother, B.B., was married to P.B. and involved in a sexual relationship with her brother-in-law, M.R. It is uncontroverted that B.B.’s husband underwent a vasectomy prior to the child’s conception. B.B. contends that her child was conceived as the result of her extra-marital relationship with M.R.

On September 10, 2007, the State of Louisiana, Department of Social Services, through the Jefferson Parish District Attorneys Office, filed a Petition to Prove Paternity and Obtain Child Support in the Juvenile Court for Jefferson Parish, pursuant to La. R.S. 46:236.1.2. In that action, the petitioners represent that M.R. is the child’s biological father. The petitioners attached genetic parentage test results from an accredited laboratory that reflect the probability of M.R. being pthe child’s biological father is 99.999%. Further, the petitioners allege that the child’s mother is entitled to child support based upon La. R.S. 46:236.1.1 et seq. and La. C.C. art. 241.

On October 5, 2007, M.R. filed Exceptions of Prescription/Peremption, No Right of Action, No Cause of Action, Res Judica-ta, and Failure to Join an Indispensable Party. After a hearing on November 15, 2007, the exceptions were overruled by the hearing officer. M.R. disagreed and requested a hearing before the juvenile court judge. The transcript of that hearing, which was held on January 7, 2008, is not part of this record.

The “best interest” hearing began on February 25, 2008. After receiving testimony from the child’s mother, B.B., and legal father, P.B., the judge recessed the matter for mediation. Although an agreement was reached, the child’s mother later moved to have the agreement set aside and to proceed with the paternity hearing.

The trial resumed on November 10, 2008. After hearing testimony, the Court ruled that M.R. failed to show that an establishment of paternity was not in the best interest of the child. The Court found that M.R. was the biological father of the child.

On appeal, M.R. challenges the denial of his exceptions as well as the Judgment rendered on November 10, 2008. Here, M.R. specifically argues, first, that the petitioner's failed to establish that the child’s mother met the statutory requirement of La. R.S. 46:236.1.2(D)(1) that she and/or the child are receiving services through the Department of Social Services. Second, M.R. argues that “all facts and evidence presented clearly support that the establishment of paternity herein would not serve the child’s best interest.” Finally, M.R. argues that the petitioners failed to introduce any evidence that he is the biological father of the|4child. In response, the State contends, first, that this appeal is premature and should be dismissed; and second, if the appeal is considered on the merits, the trial court did not err as a matter of fact or law.

The State of Louisiana, Department of Social Services, has moved to dismiss this appeal on the grounds that the judgment at issue is a partial judgment under La. C.C.P. art. 1915(B)(2), which is not appeal-able under La. C.C.P. art. 2083. In this matter, the petitioners sought relief on three claims: 1) the paternity of the child; 2) if M.R. was found to be the child’s biological father, whether it was in the best interest of that child to establish said paternity and support; and, 3) if support was to be awarded, in what amount.

Appeals are taken from final judgments. La. Ch.C. art. 330(A); La. C.C.P. art. 2083(A). In specific circumstances, partial judgments are appealable. La. C.C.P. art. 1915(A). However, most partial judgments are not appealable. La. C.C.P. art. 1915(B) provides:

(1) When a court renders a partial judgment or partial summary judgment or sustains an exception in part, as to one or more but less than all of the claims, demands, or theories, whether in an original demand, reconventional demand, cross-claim, third party demand, or intervention, the judgment shall not constitute a final judgment unless it is designated as a final judgment by the court after an express determination that there is no just reason for delay.
(2) In the absence of such a determination and designation, any order or decision which adjudicates fewer than all claims or the rights and liabilities of fewer than all the parties, shall not terminate the action as to any of the claims or parties and shall not constitute a final judgment for the purpose of an immediate appeal. Any such order or decision issued may be revised at any time prior to rendition of the judgment adjudicating all the claims and the rights and liabilities of all the parties.

The State contends that the instant judgment is clearly a partial judgment, which has not been designated as final, because it does not dispose of all the issues pending between the parties, but merely the issue of paternity. We agree.

IsThe trial judge ruled that it was in the best interest of the child for M.R. to be established as the child’s biological father. The trial court declined to set an amount of support at the hearing. The trial court did not designate its judgment as a final judgment nor did it make an express determination that there was no just reason for delay. Because neither of the conditions precedent to finalization of a partial judgment exist in the instant case, we find that judgment at issue is not a final judgment and, therefore, not ripe for appeal. See La. C.C.P. art. 1915(B)(2). This appeal is hereby dismissed with costs to be paid by appellant.

APPEAL DISMISSED.

      . Pursuant to U.R.C.A. 5-2 to protect the minor child's privacy, we will use initials to refer to the minor child as well as the responsible adults.


text:
    STATE of Louisiana v. Kerry C. SAVOIE.
    No. 09-KA-103.
    Court of Appeal of Louisiana, Fifth Circuit.
    May 12, 2009.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Andrea F. Long, David M. Abdullah, Assistant District Attorney, Parish of Jefferson Gretna, LA, for Appellee.
    Prentice L. White Attorney at Law, Louisiana Appellate Project, Baton Rouge, LA, for Appellant.
    Panel composed of Judges SUSAN M. CHEHARDY, WALTER J. ROTHSCHILD, and MADELINE JASMINE.
   MADELINE JASMINE, Judge Pro Tempore.

12Pefendant Kerry Savoie appeals his conviction for possession of cocaine, a violation of LSA-R.S. 40:967 C. On appeal, he argues that the trial court erred in denying his Motion to Suppress Evidence, and that his sentence is excessive. For the following reasons, we affirm the conviction and sentence.

FACTS

Detective Eric Dufrene of the Jefferson Parish Sheriffs Office, Narcotics Division, testified that he and a partner, Agent Morris, were conducting surveillance on a residence at 801 Garden Road in Westwe-go at around 10 p.m. on February 29, 2008, due to tips and citizen complaints about possible narcotics activity at the location. He explained that this was the first time he had conducted | .¡surveillance at this location, having visited it only once before with an informant so that he knew the location. Det. Dufrene testified that he watched the residence from a vantage point around 100 feet away' with high-powered binoculars, while his partner maintained another position around the corner out of sight of the location. He testified that this was standard procedure, in order not to alert occupants of the surveillance. He testified that he and his partner were in radio contact.

As Det. Dufrene watched the residence, after about 35 minutes, he noticed a large flat-bed Dale’s tow truck pull up to the side of the residence and park partially on the grass. The truck stayed running while the passenger got out. Det. Dufrene described how the passenger, later identified as defendant Kerry Savoie, knocked at the home’s side door, went inside for approximately 2-8 minutes, and then returned to the tow truck, which remained parked for approximately one minute until it pulled away from the residence. The driver was identified as Donald Foucha.

When the truck pulled away, Det. Du-frene followed it and radioed his partner Agent Morris, who joined him following the tow truck as it traveled to the West-bank Expressway (lower portion), where the driver committed a traffic violation by failing to signal a turn. The truck toned onto Victory Drive, where it pulled into an apartment complex and backed into a parking space. Det. Dufrene explained that they followed the truck from the Garden Road home because he believed some kind of narcotics transaction had taken place inside the residence, and he had reason to believe that there were narcotics in the truck. He explained that the truck’s activity at the home was inconsistent with towing work, as there |4appeared to be no disabled vehicle, nor did the passenger or driver use a clipboard consistent with paperwork necessary for a tow, nor was parking on the grass consistent with towing activity.

Det. Dufrene stated that they did not pull the truck over when it committed the traffic violation, instead electing to follow it to its final destination so as to not jeopardize the surveillance. As the truck backed into a parking spot at the apartment complex, the two narcotics detectives both pulled into the parking lot and parked their vehicles on either side of the tow truck, but not blocking it in. Det. Dufrene testified that it was his intention to conduct a traffic stop at that time due to the truck driver’s failure to use his tom signal, as well as his reasonable suspicion that narcotics might be in the truck. As Du-frene was walking towards the tow truck, Savoie opened his door to get out, at which point Dufrene smelled the strong odor of burnt marijuana. At that point, Dufrene testified he identified himself and cuffed Savoie, while Agent Morris cuffed Foucha, who had also exited the truck. Det. Du-frene testified that at that point, neither man was free to leave.

Det. Dufrene testified that he approached the truck to search it, and saw, on plain view on the front bench seat, a clear bag of a white powdery substance later testified and identified as cocaine. He explained that the parking lot was well lit by overhead lighting and he had a clear view inside the truck. He said he saw, also in plain view, two partially burnt marijuana cigarettes in the ashtray. He retrieved this evidence, field tested it, and arrested both men for possession of marijuana and possession of cocaine.

On cross examination, Det. Dufrene acknowledged that he did not observe Savoie carrying anything to the tow truck after leaving the residence, nor did he |ssee the truck’s occupants engaged in any suspicious activity while driving from Garden Road to the apartment complex on Victory Drive. He did not observe them smoking, nor did he see smoke. He was able to see their heads as he followed them in his unmarked car, but did not see any specific activity, as the truck’s dome light was not on while the doors were closed. Nor was he using his binoculars as he followed the truck away from the residence.

Det. Dufrene further explained that as the truck parked in the apartment complex, he pulled up on the passenger side of the truck and his partner pulled up on the driver’s side, though neither of them blocked the truck in any way. He said that they identified themselves as police officers, but did not order either man out of the truck, as both were getting out on their own at the time the police pulled up. Det. Dufrene stated that Savoie gave him verbal consent to search his apartment for a Soma prescription bottle, because Savoie had several Soma tablets in his pocket when he was arrested. Det. Dufrene testified that he conducted a brief search of Savoie’s apartment, with Savoie present, but was unable to locate the prescription at that time. Savoie was later able to provide the prescription, at which time those charges were dropped. No other drugs were found in Savoie’s apartment.

Agent Morris, also of the Jefferson Parish Sheriffs Office narcotics division, testified about his role in the surveillance. His testimony was essentially cumulative of Det. Dufrene’s, except Morris testified that he and Dufrene were in plain clothes, whereas Dufrene testified that both men were in full raid dress and police shirts.

The defense called Mandy Thibodeaux, who testified that she was a friend of Savoie’s and happened to drive up to the apartment complex as Savoie and Foucha were being detained by Det. Dufrene and Agent Morris. She testified that they | (¡searched her purse and the car in which she was riding, but she was allowed to go. She said that Savoie had given her his Soma prescription bottle to hold.

Donald Foucha, the driver of the tow truck, testified that he pleaded guilty to possession of cocaine and possession of marijuana stemming from this incident. He testified that Savoie did not purchase the drugs at the Garden Road residence, as they were Foucha’s and were already in his truck at the time. Foucha testified that he was Savoie’s neighbor, and that he was giving Savoie a ride to 801 Garden Road, where Savoie’s brother-in-law lived.

Foucha testified that at first, when the police observed the cocaine on the seat, he played dumb about the cocaine, denying he knew where it came from. He next said that the police coerced him into implicating Savoie (that Savoie purchased it for him at the Garden Road house for $120 that he gave Savoie) because he did not want his truck impounded. Foucha testified that the police searched his apartment, where they found additional marijuana. He said that he signed the consent to search form after the fact, but that the police never asked for his consent to search, nor did they read him his rights, contrary to their testimony.

Foucha specifically denied that he ever told the police that he gave Savoie the money to purchase the cocaine. He claimed that he told them that the drugs were his alone, that Savoie did not buy them, but that he (Foucha) bought them on the street. Foucha first claimed that the cocaine was in his truck in the center console, which was closed, and that the front seat was a bucket-type with a 60/40 split, contrary to Det. Dufrene’s claim that it was a bench seat. He then explained that when he saw the police, he took the cocaine out of the console and jammed it between the seats. He also denied making any statements to the police while at headquarters. Finally, Foucha agreed that he and Savoie had discussed the case prior to Savoie’s trial.

|7The State called Det. Dufrene in rebuttal, who stated that he did advise Foucha and Savoie of their rights, and that Foucha signed the consent to search form prior to the search of his apartment. Dufrene further noted that Foucha was very cooperative. He said that Foucha told him that he had given Savoie $120 to purchase the cocaine for him.

ASSIGNMENT OF ERROR NUMBER ONE

The defendant complains in brief that the trial court erred in failing to grant his motion to suppress the evidence. He seems to argue, however, a combination of a suppression of the evidence claim and a sufficiency of the evidence claim. In an abundance of caution, this court addresses both issues.

When the constitutionality of a wari’antless search or seizure is lolaced at issue by a Motion to Suppress the Evidence, the State bears the burden of proving the admissibility of any evidence seized without a warrant. LSA-C.Cr.P. art. 703(D); State v. Parnell, 07-37, (La.App. 5 Cir. 5/15/07), 960 So.2d 1091. The trial court’s decision to deny a Motion to Suppress is afforded great weight and will not be set aside unless the preponderance of the evidence clearly favors suppression. State v. Bergman, 04-435, (La.App. 5 Cir. 10/12/04), 887 So.2d 127.

The Fourth Amendment to the United States Constitution and Article I, § 5 of the Louisiana Constitution prohibit unreasonable searches and seizures. Law enforcement officers are authorized to conduct investigatory stops, which allow officers to stop and interrogate a person who is reasonably suspected of criminal activity. LSA-C.Cr.P. art. 215.1; State v. Gray, 06-298, (La.App. 5 Cir. 10/31/06), |8945 So.2d 798, writ denied, 06-2958 (La.9/14/07), 963 So.2d 993. “Reasonable suspicion” to stop is something less than probable cause and is determined under the facts and circumstances of each case by whether the officer had sufficient facts within his knowledge to justify an infringement on the individual’s right to be free from governmental interference. Id. at 7, 945 So.2d at 801.

Additionally, a violation of a traffic regulation provides reasonable suspicion to stop a vehicle. State v. Gray, supra. Once an officer has lawfully stopped a vehicle for a routine traffic violation, he is authorized to order both the driver and passenger out of the vehicle pending completion of the stop. State v. Gomez, 06-117, (La.App. 5 Cir. 11/28/06), 947 So.2d 81, citing Maryland, v. Wilson, 519 U.S. 408, 117 S.Ct. 882, 137 L.Ed.2d 41 (1997).

The plain view doctrine is an exception to the warrant requirement and applies if (1) the police officer is lawfully in the place from which he views the object, and (2) it is immediately apparent, without close inspection, that the item is contraband. State v. Gray, supra at 7, 945 So.2d at 802.

The facts in this case show that Det. Dufrene and Agent Morris intended to conduct a traffic stop of the tow truck, both because they observed the driver commit a traffic violation, and their reasonable suspicion that there were narcotics in the truck due to them observation of the activity while at the Garden Road house. The facts also show that the driver had parked the truck and the occupants were exiting the truck on them own when Det. Dufrene approached and asked if he could speak with them. At that point, Det. Du-frene smelled the burnt marijuana, which, we find, gave the officers probable cause to detain the truck’s occupants. After the defendant and Foucha were handcuffed, Det. Dufrene approached the truck in |9order to search it, and saw, in plain view, both the burnt marijuana cigarettes in the ashtray and the clear plastic bag of cocaine on the front seat.

We find no violation of the Fourth Amendment in the officer’s actions and the seizure of the marijuana and cocaine. The officers were about to conduct a traffic stop, when the smell of burnt marijuana coming from the truck’s cab provided them with additional and independent probable cause to detain the occupants. Thereafter, Det. Dufrene observed the seized drugs in plain view inside the cab of the truck. Accordingly, we see no error in the trial court’s denial of the motion to suppress.

Nor do we find any merit to the defendant’s argument that there was insufficient evidence. Savoie argues in brief that there was no evidence that he was engaged in illegal activity prior to his arrest. On the contrary, evidence was presented, which the trial court found credible, that Savoie pm-chased the cocaine at the Garden Road location. This evidence consisted of the activity that Det. Dufrene observed while conducting the surveillance, as previously described. Further, the bag of cocaine was found on the seat of the truck between the two occupants, from which the trier of fact could conclude that Savoie had dominion and control of it so as to constitute constructive possession.

ASSIGNMENT OF ERROR NUMBER TWO

The defendant contends that he was sentenced in this case to serve six months for the crime of possession of marijuana. He contends that the sentence for possession of marijuana is illegal because it is not responsive to the charged offense of possession of cocaine.

A review of the record shows that Sa-voie was arrested both for possession of marijuana (case number 08-1633) and possession of cocaine (case number 08-|1632).in The two matters were charged under different case numbers and different bills of information. Because the possession of marijuana charge is a misdemeanor, it was tried by the judge separately at the same time the jury considered the possession of cocaine charge. In the trial transcript, while the jury was deliberating on the possession of cocaine charge, the trial judge found the defendant guilty of the possession of marijuana charge. Thereafter, the defendant was sentenced to six months in jail for the marijuana charge. It is clear that that sentence pertains to case number 08-1633 and not the possession of cocaine charge in 08-1632. Defendant’s assignment of error, therefore, has no merit.

ERRORS PATENT

The record was reviewed for errors patent, according to LSA-C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975); State v. Weiland, 556 So.2d 175 (La.App. 5 Cir.1990). We find the following matters.

In imposing sentence, the trial court failed to advise of the time limit for seeking post-conviction relief as per Article 930.8(C) of the Louisiana Code of Criminal Procedure. We, therefore, remand this matter to the trial court with instructions: first, inform defendant of the prescriptive period, set forth by La.C.Cr.P. art. 980.8, by sending written notice to defendant within ten days of the rendition of this opinion and, second, file written proof in the district court record that defendant has been given such notice. State v. Fazande, 05-901, p. 10 (La.App. 5 Cir. 3/28/06), 927 So.2d 507, 513-14.

Second, the commitment order indicates that the defendant’s sentence is three years imprisonment at hard labor. In sentencing the defendant, the trial judge stated: “The Court is going to sentence you to a period of three years in the custody of Department of Corrections, giving you credit for time sei'ved.” The trial court hJhus failed to specifically state that the sentence was to be at hard labor. However, in State v. Vance, 06-452 (La.App. 5 Cir. 11/28/06), 947 So.2d 105, 109, this Court found under similar circumstances that it was not necessary to remand for re-sentencing, as only individuals actually sentenced to death or confinement at hard labor shall be confined to the Department of Corrections.

Accordingly, defendant’s conviction and sentence are affirmed.

AFFIRMED; REMANDED WITH INSTRUCTIONS.

      . The hearing on the motion to suppress was held immediately prior to the trial. The testimony at both the hearing and the trial from Det. Dufrene and Agent Morris was essentially the same. The defense witnesses at trial did not testify at the suppression hearing.

      . Initially, Det. Dufrene stated that he was positioned 100 yards away, but clarified this point on cross-examination.

      . Det. Dufrene stated that he got a clear look at Savoie with the binoculars.

      . Det. Dufrene testified that this tow truck had a bench seat with no console in between the driver and the passenger on the seat.

      .Del. Dufrene testified that Savoie was also charged with possession of a legend drug, carisprodol (Soma), because he found several tablets in Savoie’s pocket and Savoie was unable to provide the prescription at that time.

      . This court notes that no written motion appears in the record before the Court. A motion to suppress should be in writing. State v. Royal, 255 La. 617, 232 So.2d 292 (La.1970). The State did not object to the procedural deficiency and a suppression hearing was held. Because the trial court took up the motion to suppress, which it heard immediately prior to trial, this Court may review that ruling. State v. Davis, 02-1008, p. 5 (La.App. 5 Cir. 2/25/03), 841 So.2d 952, 958, writ denied, 03-0948 (La.11/7/03), 857 So.2d 516.

      . LSA-R.S. 32:104(B) provides that a person who intends to make a right or left turn that will take his vehicle from the highway it is then traveling, shall signal the intention to turn continuously during not less than the last one hundred (100) feet traveled by the vehicle before turning.