author: ROLAND L. BELSOME, Judge.

text:
    STATE Of Louisiana v. 2002 CHEVROLET TRAIL BLAZER. (In re Nathaniel White).
    No. 2011-KA-1088.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 20, 2013.

      Miles W. Swanson, New Orleans, LA, for Appellant.
    Leon A. Cannizzaro, Jr., District Attorney, Matthew Caplan, Assistant District Attorney, New Orleans, LA, for Appel-lee/State of Louisiana.
    (Court composed of Judge DENNIS R. BAGNERIS, SR., Judge ROLAND L. BELSOME, Judge ROSEMARY LEDET).
   ROLAND L. BELSOME, Judge.

| iQn remand, we have been directed by the Louisiana Supreme Court to consider the appellant’s second assignment of error. See State of Louisiana v. 2002 Chevrolet Trail Blazer (In re: Nathaniel White), 12-1148 (La.11/16/12), 104 So.3d 394, reversing, State of Louisiana v. 2002 Chevrolet Trail Blazer (In re: Nathaniel White), 11-1088 (La.App. 4 Cir. 4/25/12), 91 So.3d 487. We are presented with the following question: Is it a violation of the Double Jeopardy Clause to execute a civil forfeiture of property on the same set of facts and circumstances that resulted in an acquittal in a correlating criminal trial?

FACTS

Subsequent to a traffic stop, Nathaniel White was arrested for possession of contraband in his vehicle fuse box. The State obtained a seizure warrant for Mr. White’s vehicle and later instituted forfeiture proceedings alleging that the vehicle was used to facilitate a drug offense. Meanwhile, Mr. White was charged by bill 1 gof information in a criminal proceeding with possession with intent to distribute cocaine in violation of La. R.S. 40:967. The forfeiture proceeding was not disposed of until after defendant was tried and acquitted on the criminal charge.

DISCUSSION

Mr. White contends that the forfeiture of his interest in the Trail Blazer constitutes a violation of his double jeopardy protections against being twice placed in jeopardy for the same offense. U.S. Const. Amend. V and La. Const. Art. I, § 15; State v. Smith, 95-0061, p. 3 (La.7/2/96), 676 So.2d 1068, 1069. It has been widely recognized that double jeopardy protects against: 1) a second prosecution for the same offense after acquittal; 2) a second prosecution for the same offense after conviction; and 3) multiple punishments for the same offense. Id. “The protection against multiple punishments prohibits the Government from ‘punishing twice, or attempting a second time to punish criminally for the same offense.’ ” Witte v. United States, 515 U.S. 389, 396, 115 S.Ct. 2199, 2204, 132 L.Ed.2d 351 (1995) (citing Helvering v. Mitchell, 303 U.S. 391, 399, 58 S.Ct. 630, 633, 82 L.Ed. 917 (1938)).

Here, we are presented with a forfeiture proceeding based upon an alleged criminal act that the accused was ultimately acquitted of in a separate criminal trial. The Louisiana Supreme Court recently addressed a similar forfeiture of personal property where no arrest had been effected. In State v. $144,320.00, 12-466 (La.12/4/12), 105 So.3d 694, the State seized and eventually was granted forfeiture of $144,320.00, which was found in the floorboard of a vehicle being driven by Tina Beers. Ms; Beers was stopped for a traffic violation and consented to a vehicle search. Ms. Beers and the currency were brought to the police station |3where a canine unit alerted to drug residue on the currency. Initially, Ms. Beers indicated that the money was not hers and signed a Notice of Disclaimer of Ownership,- and waived notice of forfeiture. Once a forfeiture proceeding was instituted, both Beers and her sister requested release of the property and filed affidavits alleging that the money was their savings and that they did not receive notice of the impending forfeiture proceeding.

The trial court ultimately found probable cause for the forfeiture and granted the State’s motion to strike the claims finding there was insufficient evidence to support the assertion that the money was an accumulated savings. . In finding there was no probable cause for the forfeiture, the court of appeal reversed relying upon the fact that narcotics were not discovered in Ms. Beers’ vehicle and that she was not charged with any crime. The Louisiana Supreme Court reversed the appellate court and held that it is not necessary to prove that the person from whom the property was seized committed a drug offense, only that the seized property was related to the offense. $144,320.00, 12-166 at 7-8.

This holding suggests that if a person cannot trace their acquisition of property, the State may take it through forfeiture proceeding, by offering remote evidence regarding a possible connection to criminal activity. Although the activity could have easily occurred while the money was in the possession of another person, this did not sway the Court. While the connection between the drugs and money was very remote, Ms. Beers was nevertheless required to substantiate her acquisition. Her explanation was dismissed by the fact finder as well as the Supreme Court.

Our analysis of Mr. White’s argument must be made in light of our Supreme Court’s more liberal interpretation of the forfeiture law where a party has not been |4charged with a crime. Although the Louisiana Supreme Court’s holding seems fundamentally penal in nature, the United States Supreme Court has reviewed the issue and found that civil in rem forfeitures do not impose punishment for double jeopardy purposes. United States v. Ursery, 518 U.S. 267, 297, 116 S.Ct. 2135, 2152, 135 L.Ed.2d 549 (1996) (Justice Stevens concurring in part, dissenting in part).

Admittedly, it is difficult to reason that this practice does not constitute a criminal penalty raising due process and double jeopardy concerns. Setting what is truly a criminal forfeiture proceeding in the context of a pseudo-civil setting is a legal fantasy based on the premise that the property in question is a party to the action rather than the property owner.

The evolution of criminal/civil forfeitures has been diagramed in an Iowa Law Review which calls the entire practice into question. Historically, these types of proceedings were used when vessels traveling on the high seas were engaged in piracy or the slave trade, in situations where either the owner of the property was unknown or the government could not exercise personal jurisdiction over the person. See Susan R. Klein, Civil In Rem Forfeiture and Double Jeopardy, 82 Iowa L.Rev. 183, 188-200, (1996). Yet, these proceedings are progressively taking place against a known accused, who is also the owner of the property. Id. at 205-07. Prosecutors are now bringing forfeiture actions to gain numerous procedural advantages and to take a second shot at a criminal defendant despite double jeopardy prohibitions against multiple punishments and successive prosecutions. Id. at 218.

Justice Stevens noted in his partial dissent that “Congress and state legislatures have armed them law enforcement authorities with new powers to |Bforfeit property that vastly exceed their traditional tools.” Ursery, 518 U.S. at 300, 116 S.Ct. at 2153.

Justice Stevens further discussed the Court’s previous holding in Austin v. United States, 509 U.S. 602, 113 S.Ct. 2801, 125 L.Ed.2d 488 (1993), where the Court held that the government’s power to civilly forfeit property used to facilitate a drug offense is limited by the Eighth Amendment’s Excessive Fines Clause because, even in a civil in rem action, the forfeiture acts in part as a governmént punishment of the owner of such property. Ursery, 518 U.S. at 303, 116 S.Ct. at 2154.

In reference to the Austin Court, Justice Stevens observed the following:

In reaching the conclusion that the civil forfeiture at issue yielded punishment, the Austin Court surveyed the history of civil forfeitures at some length. That history is replete with expressions of the idea that forfeitures constitute punishment. But it was not necessary in Austin, strictly speaking, to decide that all in rem forfeitures are punitive. As Justice SCALIA emphasized in his separate opinion, it was only necessary to characterize the specific ‘in rem forfeiture in this case.’ ... The punitive nature of [federal in rem forfeitures] was accepted by every Member of the Austin Court. The majority offered several reasons for its holding. The applicable provisions expressly provided an “innocent owner” defense, indicating that culpability was a requirement for forfeiture. Further, the provisions tied forfeiture directly to the commission of narcotics offenses ... Finally, the legislative history indicated that the provisions were necessary because traditional criminal sanctions were ‘inadequate to deter or punish.’ Ibid. (quoting S.Rep. No. 98-225, p. 191 (1983), U.S.Code Cong. & Admin.News 1984, pp. 3182, 3374). In sum, it was unanimously agreed that “[statutory forfeitures ... are certainly payment (in kind), to a sovereign as punishment for an offense.” 509 U.S., at 626-627, 113 S.Ct., at 2814 (SCALIA, J., concurring in part and concurring in judgment) (emphasis in original).
Remarkably,- the Court today stands Austin on its head-a decision rendered only three years ago, with unanimity on the pertinent points — and concludes that [the federal forfeiture statute] is remedial rather than punitive in character. Every reason Austin gave for treating [the statute] as punitive — the Court rejects or ignores. Every reason the Court provides for treating [the statute] as remedial — Austin rebuffed. The Court ... ignores the fact that Austin reached the opposite conclusion as to the identical statute under review here.

Ursery, 518 at 310-11, 116 S.Ct. at 2158.

To find that the very same forfeiture proceedings that were' determined to be punitive by the Austin Court are now not considered to be so within the meaning of the double jeopardy clause seems illogical and profoundly unfair. The practice of allowing the institution of these two separate proceedings affords the State the opportunity to achieve successive prosecutions and punishments for the same offense, ignoring prohibitions against double jeopardy.

While Justice Stevens’ dissent is sound, we are bound by the above jurisprudence, which is clear on this issue. As an appellate court, we are charged with determining whether the court’s interpretative decision is legally correct. Glass v. Alton Ochsner Medical Foundation, 02-0412, p. 3 (La.App. 4 Cir. 11/6/02), 832 So.2d 403, 405. Accordingly, we cannot find the court’s ruling erroneous.

Therefore, the judgment of forfeiture is affirmed.

AFFIRMED ON REMAND

      . Mr. White appealed the trial court’s judgment ordering his Trail Blazer forfeited. This Court reversed and ordered return of the ve-hide on grounds that the State did not prove by a preponderance of evidence that the vehicle was subject to forfeiture; therefore, it did not address Mr. White's second assignment of error regarding the issue of double jeopardy.

      . At the time he was stopped, Mr. White was the subject of an ongoing narcotics investigation.


source: Caselaw Access Project

author: DANIEL L. DYSART, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Victoria M. GUILLOTT.
    No. 2012-KA-0652.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 20, 2013.

      Leon A. Cannizzaro, Jr., District Attorney, Matthew Caplan, Assistant District Attorney, New Orleans, LA, for Appellant/State of Louisiana.
    Eric E. Malveau, Orleans Public Defenders, New Orleans, LA, for Defendant/Appellee.
    (Court composed of Judge PAUL A. BONIN, Judge DANIEL L. DYSART, Judge SANDRA C. JENKINS).
   DANIEL L. DYSART, Judge.

|?The State appeals the trial court’s grant of a Motion to Quash Bill of Information (“Motion to Quash”). For the reasons that follow, we reverse.

PROCEDURAL AND FACTUAL BACKGROUND

The record before us is limited to certain pre-trial documents and the transcript from the hearing on the Motion to Quash. According to the bill of information, Defendant-appellee, Victoria M. Guillott, was charged with acting as an accessory after the fact pursuant to La. R.S. 14:25, relative to second degree murder, La. R.S. 14:30.1. At her arraignment, defendant pled not guilty.

On November 17, 2011, the trial court held a preliminary hearing and a hearing on defendant’s motion to suppress statement. According to the minute entry of that hearing, the State called Officer Brian Elsensohn to testify and introduced a hotel guest register into evidence. Neither the transcript of the hearing nor the evidence submitted at the hearing are part of the instant record. At the conclusion of the hearing, the trial court found probable cause and denied defendant’s motion to suppress statement.

[sOn February 15, 2012, defendant filed a Motion to Quash Bill of Information (“Motion to Quash”) which the trial court granted on March 1, 2012. From this ruling, the State appeals. We note that defendant did not file an appellate brief and we rely, therefore, on defendant’s Motion to Quash contained in the record and the argument made at the hearing.

DISCUSSION

Louisiana Code of Civil Procedure Article 531 provides that “[a]ll pleas or defenses raised before trial other than mental incapacity to proceed, or pleas of not guilty5 and of not guilty by reason of insanity’ shall be urged by a motion to quash.” Our jurisprudence interpreting this article reflects that a motion to quash “is, essentially, a mechanism whereby pre-trial pleas are urged, i.e., pleas which do not go to the merits of the charge.” State v. Carter, 2011-0859, p. 3 (La.App. 4 Cir. 3/21/12), 88 So.3d 1181, 1182, citing, State v. Rembert, 312 So.2d 282 (La.1975); State v. Patterson, 301 So.2d 604 (La.1974).

In considering a motion to quash, a court must accept as true the facts contained in the bill of information and in the bills of particulars, and determine as a matter of law and from the face of the pleadings, whether a crime has been charged; while evidence may be adduced, such may not include a defense on the merits. Id, citing, State v. Gerstenberger, 260 La. 145, 255 So.2d 720 (1971); State v. Masino, 214 La. 744, 750, 38 So.2d 622 (1949) (“the fact that defendants may have a good defense is not sufficient grounds to quash the indictment”). As the Louisiana Supreme court has noted, “[t]he question, then, is whether the indictment charges a valid offense.” State v. Byrd, 96-2302 (La.3/13/98), 708 So.2d 401, 411 (Citation omitted). The question is not “of factual guilt or innocence of the offense charged.” State v. Perez, 464 So.2d 737, 740 (La.1985).

14As this Court recently reiterated, a motion to quash is similar to an exception of no cause of action in a civil suit. Thus, “the court must accept as true the facts contained in the bill of information and the bills of particulars and decide whether or not a crime has been charged.” State v. Schmolke, 2012-0406, (La.App. 4 Cir. 1/16/13), 108 So.3d 296, 298 citing, State v. Lagarde, 95-1497 p. 2 (La.App. 4 Cir. 4/3/96), 672 So.2d 1102, 1103; State v. Bremer, 97-0456 (La.App. 4 Cir. 12/10/97), 704 So.2d 917. As the Supreme Court explained in Byrd, supra, in considering a motion to quash, “[t]he question, then, is whether the indictment charges a valid offense. If it does not, it is a defective indictment and its invalidity may be declared by a ruling on a motion to quash, for a motion to quash may be based on the ground that the indictment fails to charge an offense which is punishable under a valid statute.” Id. at 411, citing State v. Legendre, 362 So.2d 570, 571 (La.1978). As we noted in Schmolke, supra, “the decision on a motion to quash under Article 485 is solely a question of law ... and thus we review the trial judge’s ruling in this case under the de novo standard.” Id., 108 So.3d at 299. Indeed, our jurisprudence indicates that for issues of factual and credibility determinations, an abuse of the trial court’s discretion standard is employed, while a trial court’s legal findings are subject to a de novo standard of review. See: State v. Odom, 2002-2698 (La.App. 1st Cir.6/27/03), 861 So.2d 187, 191, writ denied, 2003-2142 (La.10/17/03), 855 So.2d 765; State v. Smith, 99-0606 (La.7/6/00), 766 So.2d 501, 504.

Under our de novo review of the record in this matter, we find that the trial court erred in granting the Motion to Quash.

According to the police report filed into the record, on March 2, 2011, Officer El-sensohn, along with the U.S. Marshall Fugitive Taskforce, was |5conducting an investigation into the whereabouts of Reginald Bell, who was wanted for second degree murder in Ouachita Parish. Defendant was allegedly noted to have knowledge of Mr. Bell’s warrant and to have provided him with a hotel room and a bus ticket to Texas. Defendant also allegedly had several telephone conversations with Mr. Bell “which assisted in his evasion from being arrested.”

Defendant’s Motion to Quash is based entirely on the premise that the State “has failed to prove corpus delicti.” In that regard, defendant argued that “there is no evidence other than her alleged statement that she purchased a hotel room and bus ticket” and therefore, “the bill of information should be quashed.” Defendant relies on the case of State v. Brown, 236 La. 562, 108 So.2d 233 (1959) in support of her position that a confession, alone, is insufficient to support the finding that a crime has been committed. She maintains that, because the State produced no other evidence that she purchased a hotel room and bus ticket for Mr. Bell, the motion to quash was warranted.

In essence, defendant’s position is that the State did not prove its case at the hearing on the Motion to Quash. Defendant’s argument, therefore, is that, at the hearing, the State’s burden was to prove that defendant committed the crime with which she was charged. We disagree. The ultimate question of whether defendant is guilty of the crime charged is a matter for trial and not for a motion to quash. As we found in Schmolke, supra, “[s]o long as the facts accepted as true can conceivably satisfy an essential element of the crime,’ the accused person can 1 ,;be compelled to stand trial for the charge.” Id. at 108 So.3d 296, 298 (Citations omitted).

In the instant matter, defendant has been charged with a violation of La. R.S. 14:25, which provides, in pertinent part:

An accessory after the fact is any person who, after the commission of a felony, shall harbor, conceal, or aid the offender, knowing or having reasonable ground to believe that he has committed the felony, and with the intent that he may avoid or escape from arrest, trial, conviction, or punishment.
An accessory after the fact may be tried and punished, notwithstanding the fact that the principal felon may not have been arrested, tried, convicted, or amenable to justice.

We have reviewed the bill of information and the bill of particulars, and in accepting the facts alleged therein to be true, we find that there are sufficient facts alleged which, if the jury or other trier of fact found them credible, could support a conviction for this crime. See: Schmolke, 108 So.3d 296, 301. Defendant’s reliance on Brown, supra, is misplaced as it did not involve a motion to quash, but rather, a conviction. The issues involved whether the State met its burden of proof under the miscegenation statute in effect at that time. We recognize that the Brown court noted that “an extrajudicial confession does not warrant a conviction unless it is corroborated by independent evidence of the corpus delicti.” Brown, supra, at 573, 108 So.2d 233. However, we do not believe that the State must prove all of the elements of its case at a hearing on a motion to quash. Whether the State can meet its burden of proof is the fundamental question which can only be answered after a trial on the merits and after the State has presented all of its evidence. We therefore find |7that the trial court erred in granting defendant’s motion to quash which was based on a challenge to the sufficiency of the evidence.

CONCLUSION

Based on the foregoing, the trial court’s ruling granting defendant’s motion to quash is reversed and the matter is remanded to the trial court for further proceedings.

REVERSED AND REMANDED

      . The bill of information made the same charges against co-defendant, Lenora Bell, in whose favor the trial court also grantee^ a motion to quash. The motion to quash was based on a lack of venue in Orleans Parish as the charges against her stemmed from her allegedly renting a motel room for a third party, who was wanted for second degree murder. The State has not appealed the ruling in Ms. Bell’s favor.

      . While the hotel room allegedly rented was located in Jefferson Parish, the bus ticket is alleged to have been purchased in Orleans Parish, making the latter a parish of proper venue. Ms. Guillott maintains that the State produced no evidence that a bus ticket was purchased. She further maintains that there is no evidence that a bus ticket was purchased in Orleans Parish. As discussed below, however, the State was not required, at a hearing on a motion to suppress to admit all evidence it intends to use at trial.

      . Id., 108 So.3d 296, 300.


author: ROSEMARY LEDET, Judge.

text:
    STATE of Louisiana v. Kevin MEREDITH.
    No. 2012-KA-0885.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 20, 2013.
    Leon A. Cannizzaro, Jr., District Attorney, Scott G. Vincent, Assistant District

      Attorney, New Orleans, LA, for Appel-lee/State of Louisiana.
    Robert C. Jenkins, Jr., Cate L. Bartholomew, New Orleans, LA, for Defendant/Appellant.
    (Court composed of Judge ROLAND L. BELSOME, Judge PAUL A. BONIN, Judge ROSEMARY LEDET).
   ROSEMARY LEDET, Judge.

Bln this criminal appeal, the defendant, Kevin Meredith, seeks review of the sentence imposed on him. Particularly, he challenges the district court’s imposition of a requirement that he pay $40,000 in restitution to the victim of the offense. Finding no error, we affirm.

STATEMENT OF THE CASE

On July 8, 2010, the State filed a bill of information charging Mr. Meredith with one count of theft valued at $500 or more. On July 26, 2010, Mr. Meredith pled not guilty. On November 7, 2011, he withdrew his not guilty plea and tendered a plea of guilty as charged pursuant to North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970). On January 20, 2012, the district court denied Mr. Meredith’s oral motion to withdraw his Alford plea. On that same date, a restitution and sentencing hearing was held. Following the hearing, the district court sentenced Mr. Meredith to five years in the custody of the Department of Corrections, which was suspended, and five years of active probation. The court imposed the following special condition: “[t]he defendant must pay restitution to the victim in |2the amount of $40,000.00. Payments will be made monthly through probation and parole.” This appeal followed.

STATEMENT OF THE FACTS

Because Mr. Meredith pled guilty to the charge, no trial took place. However, before Mr. Meredith entered his Alford plea, the State articulated the facts that it would assert against him had he gone to trial were as follows: “Kevin Meredith entered into a contract for construction of a residence on General Ogden on May 16th, 2011. He — money had been paid over in the form of two checks. Work on the said contract was never completed and the money was not refunded.” Similarly, Mr. Meredith notes in his appellant brief that the State, through discovery filed in the record, has alleged the following facts:

[Mr.] Meredith entered into a written contract with a Matthew Person to repair damage to Mr. Person’s residence following Hurricane Katrina. Mr. Person provided Mr. Meredith with $44,000 and alleges that only $4,000 of work was completed by Mr. Meredith.... [A] judgment in the amount of $40,000 plus $20,000 in interest and penalties was awarded to Mr. Person’s [sic] in connection with this case in Civil District Court. However, that judgment was subsequently discharged in a Federal bankruptcy proceeding.

DISCUSSION

ERRORS PATENT

A review of the record for errors patent reveals none.

ASSIGNMENTS OF ERROR

Mr. Meredith’s two assignments of error are as follows:

1. The trial court failed to hold a full evidentiary hearing and make the proper inquiries into the amount of restitution owed including the ability of the Defendant to pay and a determination of what, if any, monies had been paid in accordance with a civil court judgment and a bankruptcy proceeding linked to the same facts and circumstances of the case at bar.
[¾2. The restitution ordered in the case at bar is constitutionally excessive.

Although he asserted two assignments of error, Mr. Meredith briefed them together. We likewise address his assignments of error together. The gist of'Mr. Meredith’s arguments is that the district court erred in imposing an excessive sentence by ordering an excessive amount of restitution.

Under La.C.Cr.P. art. 883.2(A), the district court is required to order restitution to the victim as part of the defendant’s sentence when the victim suffered a pecuniary loss. Moreover, when a court places a defendant on probation, it is required as a condition of that probation to order payment to the victim of restitution for direct losses caused by the offense. La.C.Cr.P. art. 895 A.(7) and 895.1. “The court should determine the amount of restitution after a hearing allowing both sides to present evidence and offer argument as to the amount.” Gail Dalton Schlosser, LA. CRIM. TRIAL PRAC. § 26:4 (4th ed.2012).

|4A district court has “vast discretion in sentencing decisions, including the ordering of restitution.” State v. Portie, 08-1580, p. 23 (La.App. 4 Cir. 9/16/09), 22 So.3d 213, 227 (citing State v. Coward, 07-0421, p. 7 (La.App. 3 Cir. 10/3/07), 967 So.2d 580, 585; State v. Williamson, 04-1440, p. 6 (La.App. 3 Cir. 3/2/05), 896 So.2d 302, 307); see also State v. Peters, 611 So.2d 191, 192 (La.App. 5th Cir.1992)(citing State v. Metlin, 467 So.2d 876 (La.App. 3rd Cir.1985)).

Mr. Meredith acknowledges the principle that a district court has discretion in setting the amount of restitution. Nonetheless, he points out the following additional principles that the sentencing court must consider:

• the sentencing court’s discretion is subject to a reasonableness standard;
• the sentencing court must consider both the defendant’s ability to pay restitution and any payments already made by him;
• the sentencing court must consider civil judgments and bankruptcy proceeding in setting the restitution amount;
• a defendant’s inability to pay due to his indigence cannot result in jail time;
• an order that a defendant pay a restitution amount beyond his ability to pay serves no meaningful sentencing purpose and is constitutionally excessive; and
• an impossibly burdensome restitution may make an otherwise constitutional sentence constitutionally excessive.

Based on these principles, Mr. Meredith contends that his sentence is constitutionally excessive because the record is devoid of the factors that contributed to the district court’s decision to order $40,000 in restitution. He further contends that the district court failed to conduct a hearing at which his ability to pay and his prior payments pursuant to a civil judgment and bankruptcy | ^proceeding were taken into consideration. He thus seeks a remand for a full evidentiary hearing and resen-tencing.

The State counters that the record reflects the district court was aware of Mr. Meredith’s discharge' in bankruptcy and considered this factor in setting the restitution amount. The State further counters that there is no evidence that Mr. Meredith supports anyone other than himself or that his earning capacity is so low that it is unlikely he will be able to earn enough to pay the $666.67 monthly restitution amount ordered by the district court ($40,-000 over a five year period). The State thus contends that the district court did not abuse its discretion in setting the amount of restitution. We agree.

Although Mr. Meredith contends that he was not afforded a proper hearing, the record does not support that contention. At the restitution and sentencing hearing, the following colloquy occurred:

BY THE COURT:
All right. Let the record reflect that I have had a side bar with the State of Louisiana and Mr. Jenkins and I did ask Mr. Persons (victim) to step up, just so I could clarify a few things. And documents have been presented to me, as far as the amount, the alleged amount owed as being forty thousand dollars. And I understand, Mr. Jenkins, that you contest that amount owed.
BY MR. JENKINS:
I contest that. And I contest that you have an alleged victim and defendant using this court as a debtor’s court, based on the fact that he didn’t exhaust all his remedies in the state proceeding.
BY THE COURT:
And I understand what your argument is. But I have reviewed those documents. And there was a judgment in civil district court, granting Mr. Persons forty thousand dollars; plus it ap-. peared to be twenty thousand dollars in damages and interest. And then that was also discharged in Mr. Meredith’s bankruptcy proceedings.
So then Mr. Persons was not able to recover that amount owed because the bankruptcy court did, in fact, discharge it. But I believe that that is separate and apart from what I have here. And I understand [¿you’re arguing the doctrine of double jeopardy; and not so much the specific double jeopardy—
BY MR. JENKINS:
Right. Not the principal [sic]—
BY THE COURT:
But the doctrine. I understand.
BY MR. JENKINS:
But the doctrine of using one court when he’s lost in one forum to come on into another form.
BY THE COURT:
But I have reviewed the cases that you presented to me and I do think that those cases are distinguishable from what we have here. But, more importantly, Mr. Meredith did enter a plea of guilty under his best interest.
BY MR. JENKINS:
That’s correct.
BY THE COURT:
And I believe that there is restitution owed in this matter. And I have reviewed those. And I’m going to order that he pay Mr. Persons forty thousand dollars in restitution.

The district court thus was aware of the civil proceedings and the bankruptcy case.

Mr. Meredith’s complaint about the restitution hearing is unfounded. So far as the record reveals, he neither claimed that he was entitled to any credit (due to payment) on the amount owed, nor requested that the sentencing- judge consider his “earning capacity and assets.” See La. C.Cr.P. art. 895.1 A(1). And even if he had, and the sentencing judge had refused in error, Mr. Meredith would have been required to proffer the evidence for our review. See State v. Magee, 11-0574, pp. 60-61 (La.9/28/12), 103 So.3d 285, 326. A proffer can be “either in the form of a complete record of the excluded testimony or a statement describing what the party expects to establish by the excluded evidence.” Magee, 11-0574 at p. 61, 103 So.3d at 326 (citing State v. Adams, 537 So.2d 1262, 1264-65 (La.App. 4 Cir.), aff'd in part, rev’d in part, 550 So.2d 595 (1989)). Not even in his brief has Mr. Meredith indicated to us how the sentencing judge miscalculated either the direct loss of actual cash value to the victim or Mr. Meredith’s earning capacity or assets.

Moreover, the restitution amount set by the sentencing judge in this case is justified by the pecuniary loss suffered by the victim. See State v. Shell, 46,983, pp. 10-11 (La.App. 2 Cir. 3/7/12), 87 So.3d 934, 940-41. Insofar as Mr. Meredith’s argument that the district court failed to consider his inability to pay that amount, we note the following principles recited by the court in Shell, supra:

There is a world of difference between a probationer who can’t pay, as opposed to one who just won’t pay. If the defendant is truly unable to pay the restitution, he should not be imprisoned for that failure. We do not have debtors’ prisons in the United States, even for contractors who betray the trust of a church.

Shell, 46,983 at pp. 10-11, 87 So.3d at 940-41. The record in this ease, as the State points out, is devoid of any evidence that Mr. Meredith is truly indigent. We thus find no abuse of discretion in the district court’s order setting the restitution amount at $40,000.

DECREE

For the forgoing reasons, the judgment of the district court is affirmed.

AFFIRMED

      . The sentencing range for theft valued at $500 or more is imprisonment, with or without hard labor, for not more than five years, or a fine of not more than $2,000, or both. La. R.S. 14:67(B)(2).

      . La.C.Cr.P. art. 883.2(A) provides that “[i]n 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.”

      . La.C.Cr.P. art. 895 A provides that "[wjhen the court places a defendant on probation, ... it may impose any specific conditions reasonably related to his rehabilitation” including: "(7) Make reasonable reparation or restitution to the aggrieved party for damage or loss caused by his offense in an amount to be determined by the court.”

      . La.C.Cr.P. art. 895.1 provides:
      A. (1) When a court places the defendant on probation, it shall, as a condition of probation, order the payment of restitution in cases where the victim or his family has suffered any direct loss of actual cash, any monetary loss pursuant to damage to or loss of property, or medical expense. The court shall order restitution in a reasonable sum not to exceed the actual pecuniary loss to the victim in an amount certain. However, any additional or other damages sought by the victim and available under the law shall be pursued in an action separate from the establishment of the restitution order as a civil money judgment provided for in Subparagraph (2) of this Paragraph. The restitution payment shall be made, in [sic] discretion of the court, either in a lump sum or in monthly installments based on the earning capacity and assets of the defendant.

      B. When a court suspends the imposition or the execution of a sentence and places the defendant on probation, it may in its discretion, order placed, as a condition of probation, an amount of money to be paid by the defendant to any or all of the following:

      (5) To the victim to compensate him for his loss and inconvenience. Such an amount may be in addition to any amounts ordered to be paid by the defendant under Paragraph A herein.


author: MADELEINE M. LANDRIEU, Judge.

text:
    Benton Cason DELAHOUSSAYE, III and Amy Delahoussaye, Individually and on Behalf of their Minor Child Benton Cason Delahoussaye, IV v. TULANE UNIVERSITY HOSPITAL AND CLINIC and/or Tulane University Hospital and/or Tulane Clinic, LLC and/or Tulane Medical Center and the Administrators of the Tulane Educational Fund. Benton Cason Delahoussaye, III and Amy Delahoussaye, Individually and On Behalf of their Minor Child Benton Cason Delahoussaye, IV v. University Healthcare System, L.C. d/b/a Tulane University Hospital and Clinic and the Administrators of the Tulane Educational Fund.
    Nos. 2012-CA-0906, 2012-CA-0907.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 20, 2013.

      Kenneth W. DeJean, Lafayette, LA, for Plaintiff/Appellant.
    Bryan J. Knight, Stewart E. Niles, Jr., Niles Bourque & Fontana, L.L.C., New Orleans, LA, for Defendant/Appellee.
    (Court composed of Judge PAUL A. BONIN, Judge MADELEINE M. LANDRIEU, Judge SANDRA CABRINA JENKINS).
   MADELEINE M. LANDRIEU, Judge.

h The plaintiffs appeal the trial court’s judgment, which granted the exception of prescription filed by The Administrators of the Tulane Educational Fund, d/b/a Tulane Health Sciences Center [hereinafter “the Administrators”], and dismissed the plaintiffs’ medical malpractice claims against that defendant. For the reasons that follow, we dismiss the appeal.

FACTS AND PROCEEDINGS BELOW

On August 11, 2006, the plaintiffs, Mr. and Mrs. Benton Delahoussaye, III, filed a petition in civil district court against Tulane Hospital and Clinic [hereinafter “Tulane Hospital”] and the Administrators, alleging eighteen separate acts of negligence relating to the treatment of Mr. Delahoussaye at Tulane Hospital during the immediate aftermath of Hurricane Katrina’s landfall on August 29, 2005. Contemporaneous with the filing of the petition, the plaintiffs filed a request for a Medical Review Panel against Tulane Hospital only.

li>Both defendants in the civil action raised exceptions of prematurity. The trial court granted these exceptions with respect to all the plaintiffs’ allegations except one, finding that all but that one allegation sounded in medical malpractice and therefore had to be considered by a Medical Review Panel before the civil litigation could proceed. The defendants filed a writ application in this court, which we granted in part and denied in part. We found that fourteen allegations sounded in medical malpractice, and the remaining four allegations (the one that had been singled out by the trial court, plus three others) did not fall within the ambit of the Medical Malpractice Act and therefore could proceed without being considered by a Medical Review Panel. The Louisiana Supreme Court denied writs.

The fourteen medical malpractice allegations were presented to a Medical Review Panel, which rendered an opinion on September 23, 2010 finding that Tulane Hospital had not breached the applicable standard of care. On December 10, 2010, the plaintiffs filed a second lawsuit against both defendants alleging the same fourteen acts of medical malpractice, plus two new allegations. The second suit was consolidated with the first in the district court. The Administrators and Tulane Hospital both raised exceptions of prematurity to the plaintiffs’ second petition. Tulane Hospital’s exception was raised as to the two new allegations only. The Administrators’ exception was based on the fact that none of the ^allegations in the second petition had been considered by a Medical Review Panel as to the Administrators.

On March 2, 2011, before the exceptions of prematurity were heard, the plaintiffs filed a second request for a Medical Review Panel, this time naming both defendants. The plaintiffs subsequently dismissed without prejudice all their claims in the consolidated lawsuit except the four allegations that this court had previously held to fall outside the ambit of the Medical Malpractice Act. Following this dismissal without prejudice, the Administrators filed an exception of prescription asserting that the fourteen medical malpractice allegations that had been considered by the Medical Malpractice Panel against Tulane Hospital only, and the two new allegations made in the plaintiffs’ second petition, were prescribed as to the Administrators. After hearing this exception, the trial court rendered written judgment on February 27, 2012 granting the exception and dismissing with prejudice all of the plaintiffs’ claims against the Administrators except the four allegations in the first petition that had been determined to fall outside the realm of the Medical Malpractice Act.

The plaintiffs appeal that judgment. Before addressing the merits, this court must determine whether we have jurisdiction to consider the appeal.

APPELLATE JURISDICTION

From the above narrative, it becomes clear that the judgment on appeal dismissed some, but not all, of the plaintiffs’ claims against one defendant, the ^Administrators. We therefore must consider whether it is an appealable judgment. See La. C.C.P. art. 2083. La. C.C.P. art. 1915 B provides, in pertinent part:

B. (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, issues, or theories, whether in an original demand, reeon-ventional demand, cross-claim, third party claim, 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....

Because the judgment in question did not dismiss all the plaintiffs’ claims against the Administrators, it falls squarely within the ambit of article 1915 B. Therefore, it is not appealable absent designation as a final judgment by the trial court. No such designation appears in the record, nor do the appellants assert that they have sought or obtained one. We therefore lack appellate jurisdiction.

The proper procedural vehicle to seek review of an interlocutory judgment that is not immediately appealable is an application for supervisory writ. La. C.C.P. art. 2201; Gieck v. Tenet Healthcare Corp., 2007-1597, p. 3 (La.App. 4 Cir. 1/23/08), 976 So.2d 767, 769; Lalla v. Calamar, N.V., 2008-0952, pp. 5-6 (La.App. 4 Cir. 2/11/09), 5 So.3d 927, 931. Under certain circumstances, this court has exercised its discretion to convert the appeal of an interlocutory judgment into an application for supervisory writ. Reed v. Finklestein, 2001-1015, p. 3 (La.App. 4 Cir. 1/16/02), 807 So.2d 1032, 1033-34; Lalla v. Calamar, supra; Favrot v. Favrot, 2010-0986, p. 2 (La.App. 4 Cir. 2/9/11), 68 So.3d 1099, 1102. |fiHowever, we do so only when the motion for appeal has been filed within the thirty-day time period allowed for the filing of an application for supervisory writs under Rule 4-3 of the Uniform Rules, Courts of Appeal. See: Reed v. Finklestein, supra; Francois v. Gibeault, 2010-0180, p. 2 (La.App. 4 Cir. 8/25/10), 47 So.3d 998, 1000; Jones v. Next Generation Homes, LLC, 2011-0407, p. 2 (La.App. 4 Cir. 10/5/11), 76 So.3d 1238, 1240, writ denied, 2011-2401 (La.11/23/11), 76 So.3d 433; Barham, Warner & Bellamy, L.L.C. v. Strategic Alliance Partners, L.L.C., 2009-1528, pp. 4-5 (La.App. 4 Cir. 5/26/10), 40 So.3d 1149, 1152. Additionally, this court has found it appropriate to exercise its supervisory jurisdiction only in cases where the circumstances indicate that immediate decision of the issue sought to be appealed is necessary to ensure fundamental fairness and judicial efficiency, such as where reversal of the trial court’s decision would terminate the litigation. Reed v. Finklestein, supra. See also, Jones v. Next Generation Homes, LLC, supra (court found that the issue — revocation of appointment of counsel pro hoc vice— would become moot by the time the trial court’s decision was ripe for appeal).

None of these conditions is present here. The trial court’s judgment was rendered (and the notice of signing of judgment was mailed) on February 27, 2012. The motion for devolutive appeal was filed thirty-three days later, on March 30, 2012. Moreover, because there are issues remaining to be litigated between the plaintiffs and the Administrators, review of the trial court’s decision at this juncture would not result in termination of the litigation as to any party. The plaintiffs have not lost their right to appeal the February 27, 2012 judgment once a final judgment has been rendered as to all claims and all parties, nor have they lost | ^the option of requesting that the trial court certify the judgment as final pursuant to La. C.C.P. art. 1915 B.

For these reasons, we decline to exercise our discretion to consider the plaintiffs’ motion for appeal as an application for supervisory writ. Accordingly, we dismiss the appeal for lack of jurisdiction.

CONCLUSION

For the reasons stated, the appeal is dismissed.

APPEAL DISMISSED

      . The Administrators of the Tulane Educational Fund is the entity that employs the physicians who work at Tulane Hospital.

      . See Delahoussaye v. Tulane University Hosp. and Clinic, 2009-1046 (La.App. 4 Cir. 9/16/09), unpub.

      . See Delahoussaye v. Tulane University Hosp. and Clinic, 2009-2228 (La. 12/18/09), 23 So.3d 942.

      . Not all circuits in Louisiana follow the same practice. See, Woodlands Homeowner’s Ass'n, Inc. of Hammond v. Arvello, 96-0517 (La.App. 1 Cir. 12/20/96), 694 So.2d 386, 387; Daniels v. Hancock Fabric Store, 2000-2556, p. 3 (La.App. 1 Cir. 12/28/01), 804 So.2d 965, 966; In re Succession of Linder, 05-640, p. 4 (La.App. 5 Cir. 2/14/06), 924 So.2d 293, 295; Pelafigue v. Sudduth, 95-1305, p. 3 (La.App. 3 Cir. 12/7/95), 666 So.2d 1135, 1136.

      . See Fraternal Order of Police v. City of New Orleans, 2002-1801, pp. 3-5 (La. 11/8/02), 831 So.2d 897, 899-900, wherein the court held that a motion to certify a partial judgment as final for purposes of immediate appeal does not have to be filed within a specific time period after the trial court’s issuance of the judgment and that the delay for filing an appeal of a partial judgment begins on the day the notice of signing a motion to certify is mailed.


author: MAX N. TOBIAS, JR., Judge.

text:
    STATE of Louisiana v. Chelsea THORNTON.
    No. 2013-K-0907.
    Court of Appeal of Louisiana, Fourth Circuit.
    July 15, 2013.
    Gina Marie Recasner, Region One Attorney, Department of Health and Hospitals, New Orleans, LA, for State of Louisiana.
    Lionel Lon Burns, New Orleans, LA, Counsel for Defendant.
    Court composed of Judge MAX N. TOBIAS, JR., Judge MADELEINE M. LANDRIEU, Judge ROSEMARY LEDET.
   MAX N. TOBIAS, JR., Judge.

I,On the showing made, we grant the writ application of the Louisiana Department of Health and Hospitals, Office of Behavioral Health, Eastern Louisiana Mental Health System; vacate the trial court’s judgment insofar as the court ordered the defendant/respondent, Chelsea Thornton, to be returned to the Feliciana Forensic Facility pending, trial; and remand this matter to the trial court for entry of an order directing that Ms. Thornton be transferred to Orleans Parish Prison into the custody of the Orleans Parish Sheriff pending trial or until it is medically necessary that she be transferred to a medically appropriate treatment facility should she once again become medically unfit for trial.

La.C.Cr.P. art. 649A states:

At any time after a defendant’s commitment, if either the superintendent of the mental institution or the administrator of outreach forensic services reports to the committing court that the defendant presently has the mental capacity to proceed, the defendant, if hospitalized, shall be discharged from, the mental institution and released to the custody of the sheriff of the parish from which the defendant was committed, and the court shall hold a contradictory hearing within thirty days on that issue. No defendant shall be released prior to the holding of the contradictory hearing on his release unless the office of the district attorney in charge of the prosecution |2of the defendant receives seven days notice of the pending release of the defendant. [Emphasis added.]

In accordance with this article, the Court conducted the requisite hearing and determined the defendant to be “competent and able to stand trial.” Having made that finding, the mandatory language of the statute offers the trial court and this court no discretion to direct that the accused be held at the Feliciana facility pending trial.

SUPERVISORY WRIT GRANTED; JUDGMENT VACATED; REMANDED WITH INSTRUCTIONS.

      . This is not to say that should Ms. Thornton decompensate on multiple occasions while in the sheriff's custody making her again unfit for trial that it may not at some point in the future be appropriate to direct that she remain in the treatment facility until her trial. We do not presently address the wisdom of the statute or the potential for cruelty to which a transfer to the sheriff's custody might subject the accused.


text:
    STATE of Louisiana v. Stephen BRADLEY, III.
    No. 48,812-KH.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 26, 2013.
    Stephen Bradley, III, pro se.
    Charles Rex Scott, II, for State of Louisiana.
    Before CARAWAY, MOORE & PITMAN, JJ.
   | Applicant, Stephen Bradley, III, seeks review of a trial court judgment denying his application for post-conviction relief. Bradley was found guilty of manslaughter in September 1995 and was sentenced as a third-felony offender to 35 years at hard labor without benefits. His conviction and sentence were affirmed. State v. Bradley, 9628953 (La.App.2d Cir.4/2/97), 693 So.2d 15 (unpublished), writ denied, 97-0959 (La.10/3/97), 701 So.2d 196.

On August 29, 2012, he filed an application for post-conviction relief, claiming that his trial counsel was ineffective for failing to “communicate and/or insure petitioner had received communications of the plea offered by the state.” He contended that he only learned about the plea offer through the assistance of the Louisiana Attorney Disciplinary Board.

In support of his contention, he attached four exhibits. One was a copy of an April 19, 1995 letter from an assistant district attorney communicating a plea offer to Bradley’s counsel that would remain good until May 17, 1995. Another attachment was a copy of a May 21,1998 letter from a deputy disciplinary counsel of the Louisiana Attorney Disciplinary Board informing Bradley’s counsel that a complaint had been filed against him by Bradley and requesting a response.

|2A significant additional attachment was a copy of a letter dated March 29, 2006 from Bradley’s counsel to practice assistance counsel of the Louisiana State Bar Association, which appears to address another bar complaint by Bradley against his counsel. That letter states that after Bradley’s counsel had reviewed his file and Bradley’s complaint, he noted that “the basis of Mr. Bradley’s complaint involves materials which he was provided as his case was progressing through the courts....” As evidence, counsel attached to his letter several items, including a copy of the April 19, 1995 plea offer letter. In this regard counsel stated, “I sent Mr. Bradley a copy of the Prosecutor’s April 19, 1995 plea offer with my cover letter of April 20, 1995, both of which are also enclosed.” The March 2006 letter stated that also attached was a copy of Bradley’s 1998 bar complaint as evidenced by the May 21,1998 letter from disciplinary counsel; Bradley’s counsel noted that the 1998 complaint was “substantially similar to his current complaint.” The March 2006 letter showed that a copy was sent to Bradley.

On May 28, 2013, the trial court ruled on Bradley’s application. In addition to finding that the application failed to satisfy the two-prong test of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), the trial court found the application to be repetitive and untimely. Accordingly, the trial court denied Bradley’s application, as well as his “Motion for Summary Disposition and Traverse to State’s Objection and Response” which Bradley had filed on January 25, 2013.

In the instant writ application, Bradley raises the same ineffective assistance claims relating to alleged failure to “communicate and/or insure petitioner had received communications of the plea offered by the state.” He argues that the United States Supreme Court has held that defense attorneys “have the duty to communicate formal offers from the prosecution to accept a plea on terms and conditions that may be favorable to the defendant.” In support, he cites Lafler v. Cooper, — U.S. -, 132 S.Ct. 1376, 182 L.Ed.2d 398 (2012), and Missouri v. Frye, — U.S. -, 132 S.Ct. 1399, 182 L.Ed.2d 379 (2012). Furthermore, in response to the district court’s finding that the application was untimely, Bradley again cites Cooper and Frye, simply asserting that “this is a new interpretation of law” and that his application was timely under La. C. Cr. P. art. 930.8(A)(2).

With regard to issues of ineffective assistance of counsel at the plea phase, the Louisiana Supreme Court has held that “[w]hen a defendant enters a counseled plea of guilty, this court will review the quality of counsel’s representation in deciding whether the plea should be set aside.” State v. West, 2009-2810 (La.12/10/10), 50 So.3d 148. West, in turn, cited Hill v. Lockhart, 474 U.S. 52, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985), which held that the two-part test of Strickland v. Washington, supra, for evaluating ineffective assistance of counsel, applies to guilty plea challenges based on ineffective assistance of counsel. Thus, Louisiana also has been applying the Strickland test to challenges of guilty pleas based on ineffective assistance of counsel.

In 2012, the United States Supreme Court held that the Sixth Amendment right to effective assistance of counsel extends to the plea bargaining process and is subject to review under the Strickland test. Missouri v. Frye, supra. That same year in Lafler v. Cooper, supra, the Supreme Court applied the Sixth Amendment| aright to effective assistance of counsel to a factual situation in which defense counsel informed the defendant of the plea offer, but the plea offer was rejected by the defendant on the ineffective advice of defense counsel.

While Bradley is correct in asserting that the Strickland test applies to challenges of guilty pleas based on claims of ineffective assistance of counsel, and that La. C. Cr. P. art. 930.8(A)(2) provides an exception to the two-year PCR time limits in cases involving “a theretofore unknown interpretation of constitutional law” in which the petitioner establishes “that this interpretation is retroactively applicable to his case, and the petition is filed within one year of the finality of such ruling,” he is incorrect in concluding that Cooper and Frye operate to make his PCR application timely.

In In re King, 697 F.3d 1189 (5th Cir.2012), our federal circuit court held that Cooper and Frye “did not announce new rules of constitutional law because they merely applied the Sixth Amendment right to counsel to a specific factual context.” Thus, it did not find “a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court that was previously unavailable” so as to allow the prisoner in that case to file a successive application under 28 U.S.C. 2254. In accord is the Eleventh Circuit’s determination in In re Perez, 682 F.3d 930 (11th Cir.2012), and the Seventh Circuit’s decision in Hare v. United States, 688 F.3d 878 (7th Cir.2012).

Considering that our federal circuit court has held that Cooper and Frye did not announce new rules of constitutional law, but merely applied the Sixth Amendment right to the specific factual context of bargaining for a guilty plea, and considering that Louisiana was applying the Strickland test in the guilty plea context even before Cooper and Frye were decided, we hold that the decisions in Cooper and Frye do not provide an exception under La. C. Cr. P. art. 930.8(A)(2) to the two-year PCR time limits; they are not cases involving a retroactively applicable “theretofore unknown interpretation of constitutional law.” Additionally, we note that Bradley was aware of the plea offer at least by 2006 when his counsel copied him with the March 29, 2006 letter which referenced the plea offer letter and included a copy. Accordingly, we agree with the trial court that Bradley’s application, filed outside the two-year limit, was untimely, and we hereby deny this writ application.


author: ROBERT A. CHAISSON, Judge.

text:
    PARISH OF JEFFERSON v. H4TH & B, INC.
    No. 13-CA-771.
    Court of Appeal of Louisiana, Fifth Circuit.
    Oct. 22, 2013.

      Jesse A. Schudmak, Renee Hatch Aguilar, Assistant Parish Attorneys Parish of Jefferson, Jefferson, Louisiana, for Plaintiff/Appellee.
    Albert J. Derbes, IV, Daniel J. Poolson, Jr.,.Attorneys at Law, Metairie, Louisiana, for DefendanVAppellant.
    Panel composed of Judges MARC E. JOHNSON, ROBERT A. CHAISSON, and HANS J. LILJEBERG.
   ROBERT A. CHAISSON, Judge.

| aH4th & B, Inc., appeals a judgment finding it in violation of health, safety and welfare ordinances of Jefferson Parish, as well as La. R.S. 13:1873, by allowing buildings on its property to fall into ruin, and by storing old vehicles and other debris on the property. For the following reasons, we vacate the judgment as it applies to the zoning issue and remand the matter to the district court for a-new trial on the questions of whether there is a non-conforming use for the property, and if so, the parameters of that use.

FACTS AND PROCEDURAL HISTORY

H4th & B, Inc. is the owner of property located at 3608, 3616, and 3618 4th Street in Harvey, which has been used in the past as a service station, tire repair shop, tow truck facility, and a truck and related equipment storage area. In the late 1980’s, Jefferson Parish took action in the parish court to correct what it deemed to be a zoning violation at the site. In Parish of Jefferson v. Paciera, 496 So.2d 266 (La.1986), the court ruled that the parish court did not have jurisdiction to entertain the case, and therefore vacated the parish court judgment and dismissed the matter. It does not appear that any further legal action was taken by the parish until June 8, 2009, when it filed the present petition alleging that the property owner was in violation of the Jefferson Parish Code of Ordinances, Section 19-16, (JPCO 19-16) as well as La. R.S. 33:1374. It was specifically alleged that trash, debris, inoperable vehicles, and other miscellaneous rusted equipment parts, as well as a derelict building and a decayed house trailer, found on the property, were all in violation of the above laws relating to public health, safety and welfare. It also alleged that the owner was in violation of the Cl zoning classification of the property.

The defendant urged an exception of prescription, citing the prior case of Parish of Jefferson v. Paciera, as proof that the parish knew of the non-conforming use of the property as early as 1986. This exception was heard at trial on the merits on September 14, 2010. The case was taken under advisement and judgment was signed on June 8, 2011. The exception of prescription was overruled, the parish prevailed on the merits, and defendant was ordered to remove the objects on the property which constituted’ the violations of the health, safety and welfare laws. Through an apparent oversight, the judgment was not mailed to the litigants until May 1, 2013. The defendant thereupon filed a motion for a new trial, arguing that the condition of the property had changed dramatically since rendition of the judgment, and that there were new facts now present which warranted that the matter be heard again. It also argued the judgment was clearly contrary to the law and evidence and reasserted its exception of prescription as to the non-conforming use. The motion for a new trial was denied, and this appeal followed.

^DISCUSSION

Two assignments of error are presented. First, defendant reasserts that enforcement of the zoning violation was prescribed as provided in La. R.S. 9:5625. Second, it argues that the motion for a new trial should have been granted on the basis of newly discovered evidence as per La. C.C.Pr. art. 1972(2).

Ón the issue of prescription, La. R.S. 9:5625 provides that the enforcement authority must have received written notice of the violation to commence the running of prescription. The parish argues here that defendant did not prove that the parish had written notice, of the alleged infraction in 1986, and therefore that his exception of prescription must fail. In Parish of Jefferson v. Paciera, supra at 266, the court stated that “[t]he Parish of Jefferson brought a suit for an injunction against Paul Paciera, Sr. and Paul Paciera, Jr., ordering them to cease operation of a trucking business and the parking of heavy trucks and storage of these vehicles on a certain piece of real estate they own at 3616 Fourth Street, Harvey, Louisiana.” Paul Paciera, Jr. (now deceased) was the owner of H4th & B, Inc., and the property in question is located at 3616 Fourth Street. A key element to establish that prescription has commenced is knowledge by the parish, and that generally requires written notice. See Phillips’ Bar and Restaurant, Inc. v. City of New Orleans, 12-1396 (La.App. 4 Cir. 4/24/13), 116 So.3d 92, 103. However, where the parish has instituted legal action to stop an alleged zoning violation, its own lawsuit proves that it has had the requisite notice to commence the running of prescription. The second element required by La. R.S. 9:5625 to establish that prescription has accrued is proof by the party alleging prescription that his non-conforming use has been continuous for a period of five years from the time that prescription commenced. Even where the property owner proves the accrual of prescription (and thereby the acquisition of a legal non-conforming use), the parish |Bmay nonetheless pursue a zoning enforcement action if it is able to prove termination of the non-conforming use status by abandonment or discontinuance. In such a case, after proof of the accrual of prescription by the property owner, the burden of proof shifts to the parish to prove termination of the non-conforming use status. See Phillips’, Id.

In this case, the parish proceeded against defendant on the dual grounds that its activities violated the C-1 zoning of the property, as well as under the public nuisance laws, specifically La. R.S. 33:1373 and the Jefferson Parish Code of Ordinances, Section 19-16. It is not disputed by defendant that the evidence established that there were violations of the parish nuisance laws in regard to the decayed building and trailer, as well as numerous old and inoperable pieces of equipment. Apparently, those violations have now been rectified.

What is disputed here is whether the non-conforming use of operation of a “trucking business and the parking of heavy trucks and storage of these vehicles” on the property was continuous. Our review of the record reveals two possible readings of the judgment. One reading would mean that the trial judge never actually ruled on the issue, and the other would mean that to the extent that he did rule on it, that ruling was in error. We reach the above conclusion because of the following facts related to the prescription issue. At trial, the parish initially argued that the violations of JPCO 19-16 and the C-l zoning ordinance were the same, and that neither could be subject to prescription since both laws related to health and safety. This position is clearly contrary to La. R.S. 9:5625(B) which provides that once prescription on zoning enforcement has run, the non-conforming use becomes legal so long as it continues, and La. R.S. 9:5625(E) which provides that “[t]he provisions of this Section shall supersede any' other provisions of law inconsistent herewith.” Thus, if the trucking business, including storage of vehicles on the | fiproperty, were found to be continuous, these uses would have become a legal nonconforming use.

In closing argument, the parish attorney apparently abandoned the position that the zoning problems were imprescriptible when she stated that “[i]mproper use of the C-l zone, the' parish concedes that there is a use other than the C-l zoning allowed at this property. However, Your Honor, that does not allow [defendant] a pass to violate all laws.” There can be no interpretation of this language other than that the parish was admitting that there was indeed a non-conforming use to which the property could be put, although the exact nature of that use was not specified.

In the judgment, the judge wrote that “[w]ith regard to prescription, the alleged violations are, and have been, ongoing, they are not prescribed.” It is not clear to this court whether that sentence refers to the nuisance violations or the zoning violations, or both. If it is taken to support the proposition that the zoning violation was continuous, then the legal result would be that defendant had established some continuous non-conforming use of the property, although that use is not further defined, and the exception of prescription should have been maintained. If the judgment is read to mean that the zoning violation is deemed imprescriptible, then, as discussed above, the judgment is also erroneous. A third reading of the language that the “violations are, and have been, ongoing” .is that it refers only to the nuisance violations, and therefore that the zoning issue was simply ignored. We are thus unable to ascertain with any certainty what the judgment means, and that being the case, we cannot know what factual determinations were necessarily made to support any of the possible readings. We finally note that if the zoning issue was not in fact addressed, then the judgment is only a partial judgment and as such not appealable as per La. C.C.P. art. 1915(B).

On the issue of whether a new trial should have been granted, we conclude that it should have been. Although the appellant argues that La. C.C.P. art. 1972(2) applies here, we disagree. That article applies when evidence existing at the time of trial is not discovered before or during the trial, in spite of due diligence. It does not apply to evidence which did not exist at the time of trial, but only came into being after judgment was rendered. See Hansel v. Holyfield, 00-0062 (La.App. 4 Cir. 12/27/00), 779 So.2d 939, writ denied, 01-0279 (La.4/12/01), 789 So.2d 591. Nonetheless, La. C.C.P. art. 1971 provides that a court may grant a new trial on its own motion, and La. C.C.P. art. 1972(1) allows such action when the judgment appears contrary to the law and evidence.

Although a reviewing court will not ordinarily disturb a judgment denying a motion for a new trial, when there has been an abuse of discretion it will do so. See Warner v. Carimi Law Finn, 98-613 (La.App. 5 Cir. 12/16/98), 725 So.2d 592, writ denied, 99-0466 (La.4/1/99), 742 So.2d 560. Here, because of the over two-year delay between signing of the judgment and its mailing to the parties, the original judge is no longer on the district court. The new judge was therefore in the same position in considering the motion for a new trial as is this court now. Because of the confusion in the judgment, and the fact that the judgment is contrary to applicable law and evidence presented, we deem that the trial judge should have conducted a new trial on the issue of prescription on the zoning infraction, and we conclude that he abused his discretion in not doing so.

CONCLUSION

For the foregoing reasons, we affirm that portion of the judgment that relates to violations of the parish’s nuisance ordinances, for 3608, 3616, and 3618 4th Street, the injunctive relief requiring remediation of those violations, and the fines associated with those violations. However, we vacate the judgment to the | ^extent that it relates to violations of the parish’s zoning ordinances. We remand this matter to the district court for a new trial regarding violations of the parish’s zoning ordinances and the issue of the continuity of the alleged non-conforming use of the property in question.

AFFIRMED IN PART; VACATED IN PART, AND REMANDED.