author: Judge EDWIN A. LOMBARD.

text:
    STATE of Louisiana v. Ronald FLEMINGS.
    No. 2013-KA-1383.
    Court of Appeal of Louisiana, Fourth Circuit.
    July 2, 2014.

      Leon A. Cannizzaro, Jr., District Attorney, Donald G. Cassels, III, Donna An-drieu, Assistant District Attorneys, New Orleans, LA, for Appellant/State of Louisiana.
    Christopher A. Aberle, Louisiana Appellate Project, Mandeville, LA, for Defendant/Appellee.
    (Court composed of Judge TERRI F. LOVE, Judge EDWIN A. LOMBARD, Judge ROLAND L. BELSOME).
   Judge EDWIN A. LOMBARD.

11 The State appeals the trial court decision, rendered on August 27, 2013, to quash the indictment. After review of the record in light of the applicable law and arguments of the parties, we affirm the trial court judgment.

Relevant Facts and Procedural History

The defendant, Ronald Flemings, was arrested by the New Orleans Police Department (NOPD) on December 29, 2004, and charged with armed robbery and attempted armed robbery in violation La. Rev. Stat.l4:64 and La.Rev.Stat. 14:(27)64. The “Application for Arrest Warrant” dated December 27, 2004, lists the defendant’s address as 1310 Leboeuf Street, New Orleans, Louisiana. This address also appears on the NOPD report bearing item No. L-03530-04 prepared by the arresting officer and on the NOPD-NCIC printout dated 12/27/2004.

The defendant was charged with both offenses by bill of information in Case No. 465-823 on March 2, 2005, and arraigned on March 8, 2005, in Section “B” of Criminal District Court, Orleans Parish. There is no indication in the record that the defendant made bond.

The motion hearings scheduled for April 1, 2005, May 5, 2005, and June 3, 2005, were continued pursuant to State requests. On July 27, 2005, the State ^entered a nolle prosequi in Case No. 456-823 and, subsequently, the defendant was released from custody.

On August 9, 2005, the State reinstituted prosecution of both charges by bill of information under a new case number, 461-987. On August 25, 2005, a notice to appear for arraignment was sent to 10367 Leboeuf Street, New Orleans, Louisiana 70114, the defendant’s address as it appeared on the arrest register at the time he was booked into Central Lockup. The defendant did not appear for arraignment and the trial court issued an alias capias for his arrest, continuing the matter without date. On May 28, 2013, the defendant was arrested pursuant to the outstanding capias, and arraigned on the new charges on June 7, 2013.

On June 21, 2013, the defendant filed a motion to quash the bill of information, asserting that his statutory and constitutional speedy trial rights had been violated. After a hearing on August 27, 2013, the trial court granted the defendant’s motion. The State objected, arguing that it had met its burden under La.Code Crim. Proc. art. 578 when the Orleans Parish Sheriffs Office attempted service at the 10367 Leboeuf Street address.

By per curiam filed September 25, 2013, the trial court made the following findings:

(1) The defendant’s trial did not commence within two years from the date in August 2005 when the bill of information was filed; rather, institution of the prosecution commenced eight and a half years later.
(2) The State submitted no evidence indicating the defendant fled the State or absented himself to avoid detection, apprehension or prosecution; moreover, because the State had entered a nolle prosequi in the original case and the defendant was not out on bond, the defendant was under no bail obligation to notify the State of a change of address.
|s(3) The State advised the court that the Orleans Parish Sheriffs Office attempted service once [August 2005]; the State did not establish that it was unable to perfect service for any cause beyond the State’s control; and it was not until the defendant was arrested [as a result of the capias issued in August 2005] in May 2013, that the State took any further action beyond the one attempted service [in August 2005].
(4) As there is no indication in the record that the State actually made diligent efforts to serve the defendant, the reason for the delay lies with the State; the delay arguably prejudices the defendant’s ability to investigate, gather witnesses and prepare his defense.

The State timely filed its appeal.

Applicable Law

La.Code Crim. Proc. art. 572(A)(1) provides in pertinent part that “no person shall be prosecuted, tried, or punished for an offense not punishable by death or life imprisonment, unless the prosecution is instituted within.... [s]ix years [after the offense has been committed] for a felony necessarily punishable by imprisonment at hard labor.” See also La.Code Crim. Proc. art. 578(A)(2) (no trial shall be commenced nor any bail obligation be enforceable in non-capital felony cases after two years from the date of institution of the prosecution).

La.Code Crim. Proc. art. 579(A)(2) provides that these time periods shall be interrupted if “[t]he defendant cannot be tried ... because his presence for trial cannot be obtained by legal process, or for any other cause beyond the control of the state.” La.Code Crim. Proc. art. 579(A)(3) provides that the time period is interrupted if “[t]he defendant fails to appear at any proceeding pursuant to actual notice, proof of which appears in the record.”

Before the State can be granted an interruption under La.Code Crim. Proc. art. 579(A), the State must prove that the defendant’s absence was deliberate or beyond the State’s control. La.Code Crim. Proc. art 579(A)(1); La.Code Crim. Proc. art. 579(A)(2); see also State v. Rome, supra (burden is upon the state to 14demonstrate that the limitations were interrupted under La.Code Crim. Proc. art. 579).

Discussion

The State contends that because the address on the arrest register did not exist, the time limitation of La.Code Crim. Proc. art. 578(A)(2) was interrupted because the State was unable to serve the defendant following reinstatement of the charges. According to the State, the defendant’s presence could not be obtained by legal process because (1) he gave a false address during booking; (2) the trial court continued the matter without date; and (3) Hurricane Katrina made landfall four days after the missed re-arraignment appearance of August 25, 2005. The State concedes that the eight and one-half year delay is presumptively prejudicial, but reiterates that none of the delays are attributable to the State because the defendant gave a false address when booked.

The State’s appeal is meritless. There is no evidence in the record that the defendant purposely gave a false address. Moreover, the State always had within its possession the defendant’s correct address — 1310 Leboeuf Street — as evidenced by arrest warrant application and NOPD item report contained the record. It appears that the defendant’s address, as recorded by sheriffs deputies in the booking record — 10367 Leboeuf Street — is an administrative, typographical error. There is no evidence in the record that the defendant purposely provided a false address at booking and, as the defendant points out, the State cites no authority (and we know of none) obligating the defendant to insure the correctness of the data input by sheriff’s deputies. The State’s actions — making only a single attempt to serve the defendant at an erroneous address and no further action for eight and one-half years — does not suggest due diligence in pursuing this | ¡^prosecution. Although Hurricane Katrina indisputably entailed mass disruption in the legal system, that alone does not justify the State’s pursuit of ten-year old charges in this case. Furthermore, while the State seeks to supplement the record before this Court, it does so with documents from the case it dismissed in 2005; those documents do nothing more than show that the State had the wrong address and not the source thereof. As noted by the defendant, on the initial arrest warrant, executed on December 27, 2004, his address is listed as 1310 Leboeuf Street, which was his correct address prior to Hurricane Katrina, rather than the 10367 Leboeuf Street address which appears on the State’s later documents. Thus, the State was at all pertinent times in possession of the defendant’s actual address; specifically, the copy of the Application for Arrest Warrant dated December 27, 2004, in the record clearly requests an order of arrest for Ronald Flemings whose address is 1310 Leboeuf Street, New Orleans, Louisiana. In addition, the 1310 Leboeuf address appears in the NOPD report bearing item number L-03530-04 prepared by the arresting officer, and on the NOPD-NCIC printout dated 12/27/2004, all of which are a part of the record before this Court. Accordingly, the State is at fault for the resulting confusion regarding the defendant’s address in the months immediately prior to Hurricane Katrina. Given that the defendant had no ongoing bond obligation, he had no duty to keep the State apprised of his whereabouts once his initial case was dismissed and, concomitantly, his absence from an arraignment of which he received no actual notice does not serve as a bad faith interruption. See La.Code Crim. Proc. art. 579(A)(3) (limitation period interrupted if “[t]he defendant fails to appear at any proceeding pursuant to actual notice, proof of which appears of record”). Accordingly, because the State did not meet its burden in proving under La.Code Crim. Proc. art. 579(A)(2) that the | (¡defendant’s presence could not be obtained within the applicable time period by legal process or for any other reason beyond its control, we find no error in the trial court ruling. Clearly, as the trial court found, the eight and one-half year delay in this case is well beyond the two-year limitation period provided in La.Code Crim. Proc. art. 578(A)(2). Because the statutory violation is indisputable, we pretermit discussion of the defendant’s argument that constitutional grounds also support the ruling.

Conclusion

The State’s appeal is without merit. Accordingly, the trial court judgment is affirmed.

AFFIRMED.

      . The record is incomplete. It does not contain docket information from 2005.


source: Caselaw Access Project

author: EDWIN A. LOMBARD, Judge. TOBIAS, J., LANDRIEU, J.,

license: Public Domain

text:
    Darleen MIPRO v. LYCÉE FRANCAIS DE LA NOUVELLE-ORLÉANS, INC.
    No. 2013-CA-1604.
    Court of Appeal of Louisiana, Fourth Circuit.
    July 2, 2014.

      Robert G. Harvey, Sr., Law Office of Robert G. Harvey, Sr., APLC, New Orleans, LA, for Plaintiff/Appellee.
    Magdalen B. Bickford, Daisy G. Kane, Jackson Lewis P.C., New Orleans, LA, for Defendant/Appellant.
    (Court composed of Judge MAX N. TOBIAS, JR., Judge EDWIN A. LOMBARD, Judge MADELEINE M. LANDRIEU).
   EDWIN A. LOMBARD, Judge.

hThe Appellant, Lycée Frangais de La Nouvelle-Orléans, Inc., seeks review of the August 27, 2013 judgment of the district court granting past wages to Appellee, Darleen Mipro. Finding that the decision of the district court is not manifestly erroneous, we affirm.

Darleen Mipro (“Ms. Mipro”) was employed as a teacher by defendant Lycée Frangais de La Nouvelle-Orléans, Inc. (“LFNO”), a charter school. She worked at LFNO from August 1, 2011, through November 30, 2012, when she was terminated. Her annual salary for the 2012-2013 academic year was $51,500.00, which was divided into twenty-six (26) bi-monthly payments of $1,980.77.

She received her final check in the amount of $2,542.07 through correspondence dated December 7, 2012 from the Director of Finance and Operations, Julianne Ruocco, for LFNO. Within the letter, Ms. Ruocco explained that the check included $1,584.56 in wages for the eight out of ten days worked during the last pay period (from November 21, 2012 through December 4, 2012), in addition to $957.51 for accrued unused leave (38.67 hours).

^Subsequently, Ms. Mipro filed suit against LFNO for outstanding wages through a summary proceeding under La. Code Civ. Proc. art. 2592, et. seq. After trial was held on July 2, 2013, the district court ruled in favor of Ms. Mipro, and awarded her $5,942.30, including $1,188.46 in attorney’s fees, as well as court costs in its August 27, 2013 judgment. The district court, however, denied her claims for vacation pay, one weeks’ worth of wages, and penalty wages.

LFNO timely appealed the August 27, 2013 judgment, and raises five (5) assignments of error:

1. The district court erred in finding that LFNO failed to pay Ms. Mipro a “portion of wages” for summer pay earned during her four month tenure from August 13, 2012 to November 30, 2012.
2. he district court erred in finding that Ms. Mipro earned any wages besides that actually worked through date of her termination.
3. The district court erred in finding that Ms. Mipro earned or accrued any “summer pay” after the termination of her employment.
4. The district court erred in assessing LFNO with attorney’s fees and costs. The district court erred in awarding Ms. Mipro future earnings which had not yet accrued.
5. The district court erred by relying on Ms. Mipro’s opinion with regard to how she should be paid rather than relying on the evidence of LFNO’s compensation plan which supported she had been paid all wages due to her.

Though LFNO raises the assignment of error that the district court erred in awarding Ms. Mipro attorney’s fees and costs, this assignment of error was not lobriefed. Consequently, pursuant to the Uniform Rules, Court of Appeal, Rule 2-12.4, we pretermit discussion of this issue.

Moreover, based upon our review of the assignments of error raised as well as the arguments made in support, we find that LFNO actually raises one assignment of error: the district court erred in awarding Ms. Mipro “future” wages to which she was not entitled under the terms of her employment.

LFNO argues that the salaries for all of its teachers, including Ms. Mipro, are divided over 26 pay periods and twelve months. For the 2012-2013 school year, Ms. Mipro’s annual salary was $51,500, which resulted in her earning $1,980.77 biweekly or $198.08 per day. Additionally, LFNO argues Ms. Mipro only worked eight (8) days in the last pay period between November 21, 2012 and December 4, 2012. Thus, upon her termination she was paid $1,584.64, i.e., 8 [days] X $198.08.

LFNO avers that Ms. Mipro seeks “future” wages for the 2013 summer based upon the rationale that she is owed the difference between LFNO’s twelve-month payment schedule and what she would have been paid under a ten-month payment schedule. Ms. Mipro, LFNO asserts, is barred from recovering payment for work she did not perform in the summer of 2013, especially since these payments had not accrued at the time of her termination. Furthermore, LFNO maintains that Ms. Mipro’s beliefs as to how she should be paid are unsupported by any legal authority.

Additionally, LFNO maintains that under Ms. Mipro’s employment contract with LFNO, dated May 27, 2012, her employment was at-will; thus, she could be | germinated at any time. In an at-will work relationship, LFNO contends, future liability for wages is nonexistent, citing Newsom v. Global Data Systems, Inc., 12-413 (La.App. 3 Cir.12/12/12), 107 So.3d 781. Moreover, LFNO alleges that Ms. Mipro admitted at trial that her employment agreement does not provide that she be paid “accrued future summer pay” through the academic year. Ms. Mipro was paid for the days she worked as she worked, and thus, LFNO avers that when Ms. Mi-pro was terminated at the end of November 2012, she was paid all the wages she was due for the days she worked as well as being paid for her accrued leave.

LFNO further maintains that Ms. Mi-pro’s payment theory is at odds with established statutory law. LFNO principally relies upon La.Rev.Stat. 23:634, entitled Contract forfeiting wages on discharge unlawful, which provides in pertinent part:

A. No person, acting either for himself or as agent or otherwise, shall require any of his employees to sign contracts by which the employees shall forfeit their wages if discharged before the contract is completed or if the employees resign their employment before the contract is completed; but in all such cases the employees shall be entitled to the wages actually earned up to the time of their discharge or resignation.

LFNO argues that Ms. Mipro was paid the wages specified for the period that she worked as required by La.Rev.Stat. 23:634.

LFNO further relies upon Avila v. Sanofi-Aventis, 11-661 (La.App. 5 Cir. 03/13/12), 90 So.3d 1132, wherein the Fifth Circuit applied La.Rev.Stat. 23:634. LFNO maintains that in Avila, the plaintiff was awarded a $40,000 bonus as a | ¿result of her work performance in 2008. The bonus was to be paid in three yearly installments in 2009, 2010, and 2011; however, the plaintiff was terminated in 2009, and thus only received the first of three installments for her 2008 bonus. Although the plaintiff alleged that she earned the entire amount of the bonus because it was based on work she performed throughout 2008, the Fifth Circuit held that the remaining installments of the bonus were not yet actually earned under La.Rev.Stat. 23:634, because all of the provisions of the eligibility criteria were met not at the time of her termination.

Based upon this holding, LFNO argues that in the instant matter Ms. Mipro similarly did not earn a pro rata share of the summer wages she seeks because she was not employed during the summer months when these wages would have been paid. She did not meet the eligibility criteria for summer pay because she was terminated before the summer of 2013. Ms. Mipro failed to present evidence to support her claim that she accrued wages for the summer months of 2013. She only relies upon her self-serving recollection of experiences with other employers, and her opinion that in some way she has accrued future pay for the summer months six months after her termination. Thus, like the plaintiff in Avila, she is not entitled to any additional wages.

It further argues that as a charter school it has the statutory authority to choose the method and frequency of how to pay the annual salaries of its teachers. La.Rev.Stat. 17:3997(A); La.Rev.Stat. 23:633. Ms. Mipro’s argument that she le,is owed wages based upon a ten-month pay period, when the LFNO has the statutory right to pay teachers on a twelvemonth pay period, lacks support. LFNO contends that she was timely paid for the days she worked under LFNO’s payment schedule that was established in accordance with La.Rev.Stat. 23:631. Boudreaux v. Hamilton Medical Group Inc., 94-0879, pp. 4-5 (La.10/17/94), 644 So.2d 619, 622.

Moreover, LFNO contends that the district court’s judgment sets a precedent that infringes upon its right to determine its own pay structure and the terms of employment for its employees. It further maintains that the judgment is based upon Ms. Mipro’s opinion of what monies were due to her at termination, but it is not based upon the law, the policies of LFNO or any evidence. It contends that statutorily, Louisiana law affords it the right to choose the method and frequency of paying teachers’ annual salaries. La. Rev. Stats. 17:3997(A) and 23:633(A). LFNO argues that its compensation plan is designed to pay its teachers proportionately over 26 pay periods because teachers are expected to complete specific tasks, including drafting lesson plans and attending certification classes, before the school years begins. It further argues that the district court’s judgment sets a precedent that at termination, employees are owed wages accrued for a future time, a time not worked. Lastly, LFNO avers that the judgment penalizes it for opting to provide teachers the benefit of receiving a salary during the summer months and throughout the academic calendar for work they should be performing, such as renewing teaching certifications and creating lesson plans.

A reviewing court may not overturn the judgment of the lower court absent an error of law or finding of fact that is manifestly erroneous or clearly wrong. Rodriguez v. Green, 12-0098, pp. 2-8 (La.App. 4 Cir. 6/20/12), 111 So.3d 1, 3 (citing Stobart v. State of Louisiana, Through Dep’t of Transp. & Dev., 617 So.2d 880, 882 (La.1993)). “The Supreme Court has identified a two-part test for the reversal of a fact finder’s determinations: (1) The appellate court must find from the record that a reasonable factual basis does not exist for the finding of the trial lscourt; and (2) the appellate court must further determine that the record establishes that the finding is clearly wrong (manifestly erroneous).” Id. [citations omitted].

In the matter sub judice, the district court recognized that Ms. Mipro was actively working on a ten-month schedule, though wages had been withheld from her paychecks in order for LFNO to pay her over a twelve-month schedule. The district court further reasoned that Ms. Mi-pro was entitled to those earned wages, i.e., the difference in pay between those two payment schedules, upon her termination. In its Reasons for Judgment, the district court explained:

Ms. Mipro testified that she believed she was to be paid a prorated percentage of her summer pay for the months she worked (August 2012-November 2012). Lycee Francais representative Julianne Ruocco testified that although teachers were not required to be in the classroom in the summer months, they were considered to be an employee for twelve months rather than ten months. This Court finds the testimony elicited by Ms. Mipro at the hearing regarding her unpaid wages for a ten month versus twelve month pay schedule believable. Thus, this Court finds that the defendant, Lycee Francais failed to pay Ms. Mipro for a portion of wages earned during her four month tenure. As this Court finds that Ms. Mipro’s suit for wages is well founded, she is also entitled to attorney’s fees and costs in the amount of twenty-five percent of the total award or $1,188.46 plus court costs.

In the instant matter, the district court weighed conflicting testimony from Ms. Mipro and from representatives of LFNO as to how wages should accrue for teachers in LFNO’s employ. Ms. Mipro’s argument was based upon her experiences of being paid at other learning institutions, while LFNO’s argument was principally based upon its classification of teachers as twelve-month employees and its statutory right to determine how to pay its teachers. The district court ultimately credited the testimony of Ms. Mipro. Where there is a conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of | flfact should not be disturbed upon review. Rodriguez, p. 3, 111 So.3d at 3 [citations omitted]. Thus, we do not find that the district court erred in relying on Ms. Mipro’s testimony that she is due wages she already earned upon her termination. Moreover, we find that Ms. Mi-pro’s pursuit of the disputed wages is supported by La.Rev.Stat. 23:634, which, as previously noted, states that employees “shall be entitled to wages actually earned” up to the time of their termination. As stated previously, Ms. Mipro only sought that portion of her wages that she had already earned in the instant matter. Thus, statutorily it is not permissible for LFNO to retain the disputed wages and thereby benefit from Ms. Mipro’s labor without tendering adequate compensation to her.

Furthermore, we find that LFNO’s reliance upon Avila is misplaced. In Avila, a terminated pharmaceutical sales employee, Ruth Avila, sought to recover a portion of an unpaid bonus under the Louisiana Wage Payment Act, La,Rev.Stat. 23:631, et seq., for wages remaining unpaid after termination of her employment. The district court held that she was not entitled to the bonus and ruled in her employer’s favor. Avila v. Sanofi-Aventis, U.S., 11-661 (La.App. 5 Cir. 3/13/12), 90 So.3d 1132, writ denied, 12-0813 (La.5/25/12), 90 So.3d 416. The Fifth Circuit upheld the district court’s reasoning that although Ms. Avila was awarded a bonus based upon work she performed in 2008, the bonus payments, which were to be paid in three installments, were contingent upon the quality of her performance and her continued employment. Thus, at the time of her termination, the remainder of her bonus payments had not fully vested because the Eligibility Criteria set by her employer had not been met. Id. at p. 10, 90 So.3d at 1137.

We find Avila to be factually distinguishable from the instant case for two (2) reasons: 1.) in the instant matter, Ms. Mipro sought wages, not a bonus, and |in2.) at the time the bonus was awarded in Avila, the policy of her employer was that certain conditions had to be met for Ms. Avila to receive each installment of her bonus, but said conditions were not met by her at the date of her termination.

The issue presented in the matter sub judice is analogous to one raised in Jeansonne v. Schmolke, 09-1467 (La.App. 4 Cir. 5/19/10), 40 So.3d 347. In Jeansonne, a terminated project manager, Nicole Jeansonne (“Ms. Jeansonne”), sued her employer, a general contractor and his company, seeking unpaid wages. Pursuant to the terms of Ms. Jeansonne’s employment, she was to receive as payment a percentage of profits upon completion of each project assigned. The district court awarded the unpaid wages and attorney’s fees to Ms. Jeansonne. The defendants appealed asserting numerous assignments of error, including that the district court erred by awarding Ms. Jeansonne “future” wages. Id. at p. 7, 40 So.3d at 357. Concluding that Ms. Jeansonne was indeed an at-will employee, we nevertheless held that the district court properly awarded her wages, similar to commissions, for work that she had already performed. We reasoned:

... We agree with defendants that Ms. Jeansonne was not hired for a fixed time period, and therefore qualifies as an “at will” employee. However, considering the verbal agreement between Mr. Schmolke and Ms. Jeansonne, we do not find that any part of the amount awarded to Ms. Jeansonne constituted “future” wages. With regard to the projects that remained unfinished at the time of her discharge, Ms. Jeansonne did not seek payment for work she was to perform in the future; instead, she sought payment for work she had already performed, in major part, but was prevented from completing ...
Because Ms. Jeansonne sought her agreed-upon commissions rather than wages for work that was to be | n performed in the future, we find Saaclcs to be inapplicable. We therefore reject defendants’ argument as to “future” wages.

Id. at p. 13, 40 So.3d at 358.

We do not find that the district court erred in holding that Ms. Mipro is entitled to that portion of the wages she earned while working during the school year. LFNO pays its teachers less during the ten months that they are more actively working in order to pay them proportionately year-round. Nevertheless, Ms. Mi-pro’s pursuit of relief for the discrepancy in pay between that portion of the school year she actually worked (August 2012-November 2012) and the twelve-month payment schedule was a reasonable one. This holding neither detracts from the fact that Ms. Mipro’s employment was at-will or from LFNO’s ability to regulate the manner in which its employees are paid while in its employ.

Lastly, we address Ms. Mipro’s request for an award of attorney’s fees for defending the instant appeal. In Jean-sonne, we explained an increase in an ap-pellee’s attorney’s fees should be awarded where the appellee: 1.) has been awarded attorney’s fees by the district court and 2.) then successfully defends an appeal. Jeansonne, 09-1467, p. 21, 40 So.3d at 362 (citing Saacks, 03-0386, p. 25, 855 So.2d at 375). Nevertheless, we further reasoned that appellate courts do not generally consider making such an award unless the appellee has filed an answer to the appeal. Id. Ms. Mipro did not file an answer to the appeal in the matter sub judice; thus, we cannot award her attorney’s fees on appeal. | ^Nevertheless, we assess the costs of this appeal against LFNO. See Saacks, 03-0386, p. 26, 855 So.2d at 376.

DECREE

For the foregoing reasons, the judgment of the district court is affirmed and Lycée

|2LYCEE

Frangais de La Nouvelle-Orléans, Inc. is ordered to pay the costs of this appeal.

AFFIRMED

TOBIAS, J., concurs in the result and assigns reasons.

LANDRIEU, J., concurs in the result and assigns reasons.

TOBIAS, J.,

concurs in the result and assigns reasons.

LI respectfully concur in the result.

The operative provisions of the employment agreement existing between Ms. Mi-pro and Lycée Frangais de la Nouvelle-Orleans (“LFNO”) are as follows:

EMPLOYMENT AGREEMENT
LYCEE: Lycée Frangais de la Nou-velle-Orleans, a nonprofit public corporation, located at 5401 S. Claiborne Avenue New Orleans, LA 70125
EMPLOYEE: Darleen MIPRO
POSITION: Special Education Coordinator, English Head
COMMENCEMENT: August 13th, 2012
DURATION: 1 year.
SERVICE OBLIGATIONS: 40 hours per week
SALARY: $51,500
The Employee, if not a U.S. citizen, must comply with all U.S. immigration laws.
Executed in New Orleans, Louisiana on May 27, 2012

EMPLOYEE SIGNATURE

6. Dismissal/Resignation An LFNO employee may resign his/her position with 60 days written notice. Similarly, your contract may be terminated, upon 60 days written notice, unless the termination is for cause, in which case it can be terminated at any time without notice.

According to the evidence, students were in school from approximately mid-August through the first four or five days of June of each academic year. LFNO’s teachers were expected to attend in-service meetings for faculty during the first week or two of August prior to the commencement of classes, and again for roughly three days in June once classes for the students were concluded. While teachers were welcomed and encouraged to present to the school and work over the summer months to prepare lesson plans, work on certifications, et cetera, contrary to the “40 hours per week” for the duration of “1 year” as expressly stated in the employment agreement, LFNO did not expect, nor were the teachers required, to come to work for 40 hours per week from about the 7th of June through the 1st week of August. So while LFNO considered its faculty to be year-long employees, the testimony elicited at the hearing evidenced that the teachers only actually worked at school for approximately ten months of the year.

LFNO paid its teachers their respective annual salaiies for the ten-month school year divided over a twelve-month pay period, or bi-weekly consisting of 26 pay periods. In short, the teachers’ annual salary, which paid them for ten months of actual teaching, was paid out over a twelve-month period rather than being paid Rout in full over the ten months in which they actually taught (or in about 20 pay periods).

According to Ms. Mipro, she only seeks the total amount of her annual salary that she would have received for the four months that she worked had LFNO divided and paid her annual salary over a ten-month period rather than the amount LFNO actually paid her based upon a division of her annual salary over a twelvemonth period. Put another way, had Ms. Mipro been given the option and had elected to receive her annual salary of $51,500 over the ten months that she was expected to teach (which included the one to two weeks in August before the students commenced classes and the three days in June after classes ended), she would have received bi-weekly payments of $2,575 for 20 weeks. Instead, LFNO, for policy reasons, paid their teachers their annual salaries divided over a twelve-month period for the same amount of time worked. According to Ms. Mipro, this was done as a mere courtesy or convenience to its faculty and staff in order to provide them with income throughout the year. Under the twelvemonth pay scheme, Ms. Mipro was paid a bi-weekly salary of $1,980.77, yielding a difference of approximately $594 per pay period. At the time of her termination, Ms. Mipro had worked the months of August, September, October and November, or for a total of eight pay periods; she received only $1,980.77 of the total $2,575 she claims she was owed, but for LFNO’s courtesy of stretching her pay out to cover the summer months. Thus, Ms. Mipro contends, and the trial court agreed, that LFNO remains indebted to her for the $594.28 shortfall for each of the eight pay periods that she worked, or for a total of $4,758.84.

I find the terms of the employment agreement are ambiguous. The evidence in the record supports Ms. Mipro’s contentions. The trial court judge did not abuse her discretion. The trial court was not manifestly erroneous in its conclusions.

LANDRIEU, J.,

concurs in the result and assigns reasons.

l,The Employment Agreement between the school (“LFNO”) and Ms. Mipro provides for an annual salary of $51,500.00 and a term of “1 year” commencing on August 13, 2012. “1 year” is not defined as either a calendar year or an academic year. Further, the contract requires Ms. Mipro to work 40 hours per week. It is undisputed that this obligation was not applicable when the students were not in school. The contract is ambiguous in this respect. An ambiguous provision in a contract is construed against the drafter, in this case the school. See Louisiana Ins. Guar. Ass’n v. Interstate Fire & Cas. Co., 630 So.2d 759, 764 (La.1994). On this basis, I respectfully concur in the result.

      . Ms. Mipro’s first name is spelled as "Darlene” in some portions of the record.

      . Ms. Mipro’s employment contract with LFNO was admitted at trial as Plaintiff’s Exhibit 1. Pursuant to said contract with LFNO, she was employed for the 2012-2013 school year, which began in August 2012.

      . Uniform Rules, Court of Appeal, Rule 2-12.4, provides in pertinent part, "All specifications or assignments of error must be briefed. The court may consider as abandoned any specification or assignment of error which has not been briefed.”

      . Regarding termination, Section 6 of Ms. Mipro’s employment contract provides: an LFNO employee may resign his/her position with 60 days written notice. Similarly, your contract may be terminated, upon 60 days written notice, unless the termination is for cause, in which case it can be terminated at any time without notice.

      . La.Rev.Stat. 17:3997(A), states in pertinent part:
      A. (l)(a) The governing authority of any charter school may employ such faculty and staff members as it deems necessary. All potential charter school employees shall be notified of the specific benefits they will be offered, as specified in the school’s charter agreement. (b) The nonprofit organization shall have exclusive authority over all employment decisions at the charter schools. However, as provided for in the charter, a nonprofit organization may enter into a contract with a for-profit organization to manage the charter school and may delegate to the for-profit organization such authority over employment decisions at the charter school as the nonprofit organization deems necessary and proper. Any delegation of this authority must be specifically delegated in a service provider agreement.
      La.Rev.Stat. 23:633(A) states:
      A. It shall be the duty of each employer subject to this Section to inform his employees at the time of hire what wages they will be paid, the method in which they will be paid and the frequency of payment along with any subsequent changes thereto. Except as provided under Subsection B of this Section, any employer that fails to designate paydays must pay his employees on the first and sixteenth days of the month or as near as is practicable to those days.

      . La.Rev.Stat. 23:631, entitled Discharge or resignation of employees; payment after termination of employment, provides in pertinent part:
      A. (l)(a) Upon the discharge of any laborer or other employee of any kind whatever, it shall be the duty of the person employing such laborer or other employee to pay the amount then due under the terms of employment, whether the employment is by the hour, day, week, or month, on or before the next regular payday or no later than fifteen days following the date of discharge, whichever occurs first.

      (2) Payment shall be made at the place and in the manner which has been customary during the employment, except that payment may be made via United States mail to the laborer or other employee, provided postage has been prepaid and the envelope properly addressed with the employee's or laborer’s current address as shown in the employer's records. In the event payment is made by mail the employer shall be deemed to have made such payment when it is mailed. The timeliness of the mailing may be shown by an official United States postmark or other official documentation from the United States Postal Service.

      . Commissions are considered wages under La.Rev.Stat. 23:631-32. Id. at p. 13, 40 So.3d 347, 358.

      . In Saacks v. Mohawk Carpet Corp., 03-0386 (La.App. 4 Cir. 8/20/03), 855 So.2d 359, we affirmed the district court's holding that the plaintiff had entered into a fixed-term contract and as a result she was entitled to the remainder of her salary for the contracted period despite the fact that her position was eliminated a year after she had begun working.

      . While an issue as to the validity of Ms. Mipro’s written employment agreement was raised during the trial, its legality is not raised as an issue on appeal. Nonetheless, for purposes of this concurrence, the operative provisions that I address are not in dispute; i.e., duration, service obligations, and quantum of salary.


author: ROLAND L. BELSOME, Judge.

text:
    Cherie CODY v. ELAINE NUNEZ COMMUNITY COLLEGE, et al.
    No. 2013-CA-1207.
    Court of Appeal of Louisiana, Fourth Circuit.
    July 2, 2014.

      Tammy L. Karas, Craig P. Hart, Law Office of Craig P. Hart, Covington, LA, for Plaintiff/Appellant.
    Jerry L. Stovall, Jr., Leo C. Hamilton, Breazeale, Sachse & Wilson, LLP, Baton Rouge, LA, for Defendant/Appellee.
    (Court composed of Judge MAX N. TOBIAS, JR., Judge ROLAND L. BELSOME, Judge ROSEMARY LEDET).
   ROLAND L. BELSOME, Judge.

|T The plaintiff, Cherie Cody, appeals the trial court’s judgment dismissing her damages claim in favor of the defendant. For the following reasons, we affirm.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

On January 20, 1998, Ms. Cody was hired by the Board of Trustees for State Colleges and Universities (BTSCU) as a practical nursing instructor at Elaine P. Nunez Community College (Nunez). Her employment was based on nine-month teaching contracts wherein she received a new contract each academic year. The final contract between the plaintiff and Nunez was entered into on August 10, 2001, and expired on May 20, 2002. On July 22, 2002, she was informed that she would not receive a new contract.

As a result, Ms. Cody filed a suit for damages against Nunez and the Louisiana Community and Technical College System Board of Supervisors (LCTCS), seeking unpaid salary and benefits for the 2002-03 and 2003-04 school | wears. She asserted that Nunez violated a written policy promulgated by the BTSCU (old policy) that requires non-tenured faculty to be given twelve months advance notice that their contract is not going to be renewed. She also alleged that the LCTCS was liable because it managed and provided oversight to Nunez. In an amended petition, Ms. Cody alternatively asserted that she was entitled to notice of non-renewal before the end of her last academic year, under LCTCS policy number 6.016 (new policy), which was enacted during the 2001-02 academic year.

Following a denial of summary judgment, this Court denied writs. At the conclusion of trial, the court determined that Ms. Cody was not entitled to notice of non-renewal, and dismissed her claim. This timely appeal follows.

STANDARD OF REVIEW

In reviewing a trial court’s findings of fact, appellate courts employ a “manifest error” or “clearly wrong” standard of review. Rosell v. ESCO, 549 So.2d 840, 844 (La.1989) (citations omitted).

DISCUSSION

In her sole assignment of error, Ms. Cody asserts that the trial court erred in finding that Nunez was not obligated to give her timely notice of the non-renewal of her employment contract. At trial, and on appeal, Ms. Cody argued that she was due notice of non-renewal of her contract, under the new policy.

IsLCTCS policy number 6.016, states in pertinent part:

NON-TENURED FACULTY
An appointment carries no assurance of reappointment promotion, or tenure. Reappointments are made solely at the discretion of the institution with the approval of the Board. The non-reappointment of a faculty member does not necessarily reflect on the faculty member’s work record or behavior. The determination to reappoint, or not to reappoint, should be based upon a review of the specific conditions relating to the position. The Chancellor is responsible for instituting action that ensures that each tenure-track faculty member is reviewed for renewal each year. Unless an appointment is of a temporary nature for a fixed term, notice that a probationary appointment is not to be renewed shall be given to the faculty member in advance of the expiration of the appointment, [emphasis supplied].

Based on the language of the policy, it is clear that in order to establish entitlement to notice of non-renewal, the employee’s appointment must first be probationary. Thus, in order to conclude that the provisions of the new policy apply to Ms. Cody, we must determine her employment status, i.e., whether she was a probationary or non-probationary employee. Therefore, our review is narrowly tailored to this determination.

At trial, Ms. Cody testified that she was a non-tenured faculty member and had no reason to believe that she was a temporary employee. Significantly, Ms. Cody, herself, never testified that she believed herself to be a probationary employee. Her own witness, Donna Clark, who retired in 1998 as the Vice Chancellor of Student Affairs, testified that Ms. Cody’s position, instructor of practical nursing, would not be classified as a temporary position. She further indicated that Ms. Cody would be classified as non-tenured, full-time staff. She |4also testified that as of July 2002, Ms. Cody was not on probational appointment either.

Carol McCleod, Brian Keating, and Thomas Warner, all employees of Nunez, testified that a probationary faculty member was considered to be one serving the first full academic year. They all testified that Ms. Cody was not on probationary appointment since she had finished her first academic year. They further testified that Ms. Cody did not have to be notified; however, she was given notice as a courtesy-

After reviewing all of the evidence admitted at trial, the trial court concluded that Ms. Cody failed to prove that she was under a probationary appointment requiring notice of non-renewal. In light of the record as a whole, we cannot find that the trial court was manifestly erroneous or clearly wrong in dismissing Ms. Cody’s lawsuit against the LCTCS. Accordingly, the trial court’s judgment is affirmed.

AFFIRMED.

      . When Ms. Cody was hired, Nunez was governed by the BTSCU. However, pursuant to Act No. 151 of the 1998 legislative session, Nunez became a part of the Louisiana Community and Technical College System (LCTCS). The effective date of this change was July 1, 1999, after which the LCTCS oversaw Nunez.

      . Even though on appeal Ms. Cody also argues that she was entitled to receive the benefits of the old policy, which required Nunez to give all non-tenured employees notice of non-renewal, there was no evidence presented at trial to support the application of the old policy.

      . It further excludes those probationary appointments, which are of a temporary nature for a fixed term.


author: JAMES F. McKAY III, Chief Judge.

text:
    STATE of Louisiana v. Darrell P. DIXON.
    No. 2013-KA-0396.
    Court of Appeal of Louisiana, Fourth Circuit.
    July 2, 2014.

      Leon A. Cannizzaro, Jr., District Attorney of Orleans Parish, Kyle Daly, Assistant District Attorney of Orleans Parish, New Orleans, LA, for Appellant/State of Louisiana.
    Colin Reingold Orleans Public Defenders, New Orleans, LA, for Defendant/Ap-pellee.
    (Court composed of Chief Judge JAMES F. McKAY III, Judge DENNIS R. BAGNERIS, SR., Judge PAUL A. BONIN).
   JAMES F. McKAY III, Chief Judge.

|,STATEMENT OF CASE

On May 11, 2012, the defendant, Darrell Dixon (“defendant”), was charged by bill of information with possession of a firearm by a convicted felon in violation of La. R.S. 14: 95.1. The bill of information provides that the defendant was found in possession of a “rifle” on May 10, 2012, and had previously been convicted of simple burglary in Case No. 495-690 in Section “D” of the Criminal District Court for the Parish of Orleans.

The defendant appeared for arraignment on June 4, 2012, and entered a plea of not guilty. The defendant subsequently filed a motion to suppress and motion for preliminary hearing. On July 21, 2012, the trial court denied the motion to suppress and found probable cause to substantiate the charge.

On February 1, 2013, the defendant filed a motion to quash the bill of information and declare La. R.S. 14:95.1 unconstitutional based on the 2012 ^amendment to Article 1, Section 11 of the Louisiana Constitution. The State filed an opposition to the motion to quash on February 19, 2013. The same date, the trial court heard and granted the defendant’s motion to quash the bill of information. The trial court stated:

I don’t want to hold — I don’t think that the statute, per [se], is unconstitutional in every set of circumstances. But, I think the Louisiana population added that language to that amendment, and I think that you have a nonviolent crime here. It was a non-violent crime. It is not in fourteen two. It is a non-violent crime. It was a burglary of an automobile that belonged to the city, and then he has a gun. I think the Eighth Amendment of the U.S. Constitution talks about the penalty having to fit the crime. I have never liked the overreaching of these things anyhow, but I think in this case, this case specifically, it is case specific, and not the stature as a whole, but I will grant the Motion to Quash in this case.
But, I want the Court of Appeal or whoever reviews this to understand that it is case specific because of the language in that amendment and not the statute in general. I am not quashing the entire statute, but I am looking at that language, you know, and that language indicates to me strict scrutiny. I am giving it strict scrutiny on an individual case basis and not the statute as a whole.

On February 21, 2013, the trial court further clarified that its decision to quash the bill of information was based the interpretation of the law as applied to the specific | .¡facts of the case. The trial court stated:

As to Darrel Dixon, I quashed the Bill of Information in that case and it was a 95.1, but I am not contesting the constitutionality of the 95.1_
As the amendment to the Louisiana Constitution added specific language, I am interpreting that language to meet these set of facts, and these set of facts only. And that’s why I quashed it. Not any other reason.

On April 22, 2013, the State filed a motion to stay the appeal pending the Louisiana Supreme Court’s decision in State v. Draughter, which was on direct appeal from a trial court’s ruling that La. R.S. 14:95.1 was unconstitutional on its face. This Court granted the State’s motion, stayed the matter, and ordered that the State notify the Court in writing of the Louisiana Supreme Court’s disposition in Draughter within seven days of its issuance.

On December 11, 2013, the State timely notified this Court that the Louisiana Supreme Court had reached a decision in Draughter and included a copy of the opinion. On December 23, 2013, this Court was advised by the Clerk of Criminal District Court that no pleadings were located in the record regarding the motion to quash. On December 26, 2013, this Court lifted the stay and issued notice advising the parties that the record was complete.

STATEMENT OF FACT

The facts of the underlying offense are limited to testimony adduced at the preliminary hearing.

Officer Edwin Patrick (“Officer Patrick”) testified that he was working for the Sixth District of the New Orleans Police Department on May 10, 2012. He stated that he and his partner, Officer John Waterman, were patrolling in the 2800 14block of Danneel Street in a marked police vehicle when he observed three black males in an empty lot next to 2840 Dan-neel Street. Officer Patrick testified that the three subjects were standing behind a gray Toyota attempting to get in the vehicle. He observed that one of the subjects, identified in open court as the defendant, was holding what appeared to be a gun in his right hand close to his waist in the attempt to conceal it. When defendant noticed the officers, he threw the gun under the back of the vehicle. Officer Patrick and his partner immediately stopped their vehicle and approached the suspects. Officer Patrick stated that they placed all three subjects in handcuffs for officer safety. Officer Patrick testified that he recovered a “fully loaded” “twenty-two caliber submachine gun” under the Toyota. After running a check on the defendant’s name, Officer Patrick discovered the defendant had a previous arrest for illegal carrying of a weapon. The name search did not, however, show that he had been convicted of that offense.

On cross-examination, Officer Patrick estimated that he was ten feet away from the defendant when he observed the gun in defendant’s possession. He stated he believed he had previous “run-ins” with defendant but had never arrested the defendant before May 10, 2012. Officer Patrick testified that he wears corrective lenses every day and could clearly see within at least ten feet. He stated that the twenty-two caliber weapon found at the scene was “sort of like a handgun with ... an extended clip.” Officer Patrick stated he initially stopped the defendant for a “signal 107,” police department code for “suspicious person,” but arrested the defendant for illegal carry of a weapon. He admitted that the gun was not reported stolen. Officer Patrick also admitted that he did not finger print the gun or call | fjCrime Lab to the scene, but explained he felt it was unnecessary considering he observed the defendant with the gun. Officer Patrick testified that a search incident to the defendant’s arrest did not reveal any additional evidence. He stated that one of individuals with the defendant was previously arrested for illegal carrying of a handgun and had two warrants out for his arrest. Officer Patrick testified that he learned from nearby residents that neither the defendant nor the other two suspects lived at the home next to the empty lot.

After Officer Patrick’s testimony, the State offered a certified copy from the Orleans Parish Criminal District Court Clerk’s Office of the defendant’s prior conviction for simple burglary into evidence. These documents contain: a bill of information dated March 22, 2010, charging the defendant with “simple burglary of a vehicle,” namely, a “2009 Kia Borrego belonging to the City of New Orleans”; a guilty plea form dated June 30, 2010; the docket master; minute entries; a screening action form; and an arrest register in Case No. 495-690. The minute entry of June 30, 2010 provides that the defendant was sentenced to five years, suspended, with two years active probation and three years inactive probation. The minute entry of February 3, 2012 provides that the trial court terminated the defendant’s probation satisfactorily.

DISCUSSION

STANDARD OF REVIEW

Although a trial court’s ruling on a motion to quash will generally not be reversed absent an abuse of discretion, a trial court’s legal findings are subject to a de novo standard of review. State v. Hall, 2013-0453, p. 11 (La.App. 4 Cir. 10/09/13), 127 So.3d 30, 39-39 (citing State v. Batiste, 2005-1571, p. 9 (La.10/17/06), 939 So.2d 1245, 1251; State v. Smith, 99-0606, p. 3 (La.7/6/00), 766 So.2d 501, 504. The interpretation of a constitutional issue of law is reviewed de novo. Id. In reviewing rulings on motions to quash where there are mixed questions of fact as well as law, a trial judge’s ruling on a motion to quash is discretionary and should not be disturbed absent a clear abuse of discretion. State v. Sorden, 2009-1416, p. 3 (La. 4 Cir. 8/4/10), 45 So.3d 181, 183; State v. Tran, 2012-1219, p. 2 (La.App. 4 Cir. 4/24/13), 115 So.3d 672, 673, n. 3).

Here, the trial court’s decision to quash the bill of information was based on its interpretation of the 2012 amendment to La. Const. Art. 1, § 11 and La. R.S. |714:95.1, as applied to the defendant and the specific facts of case, and thus involved mixed questions of law and fact.

As the parties do not contest that the defendant was in possession of a firearm or that the defendant had a prior nonviolent felony conviction, arguably the trial court did not make findings of fact but relied on the uncontroverted evidence in reaching its decision. Moreover, the Louisiana Supreme Court reviewed “as applied” constitutional challenges under the de novo standard of review. See, State v. Draughter, 2013-0914, p. 4, 130 So.3d at 860 (reviewing the defendant’s facial and as applied challenge to La. R.S. 14:95.1 de novo ).

ASSIGNMENT OF ERROR NUMBER 1

As its sole assignment of error, the State argues that the trial court erred when “it found that Louisiana’s felon disposition statute [La. R.S. 14:95.1] is unconstitutional as applied to an individual recently convicted of simple burglary and arrested while in possession of a fully-loaded sub-machine gun while loitering in an abandoned lot.”

As noted above, it is undisputed that the defendant was previously convicted of simple burglary and that the defendant was in possession of a firearm prior to his arrest. See, La. R.S. 14:95.1(D) (defining “firearm” as “any pistol, revolver, rifle, shotgun, machine gun, submachine gun, black powder weapon, or assault rifle which is designed to fire or is capable of firing fixed cartridge ammunition or from which a shot or projectile is discharged by an explosive”).

lsThe bill of information charged the defendant for being in possession of a rifle. Officer Patrick testified at the preliminary hearing that the firearm at issue was a “twenty-two caliber submachine gun” and “sort of like a handgun with kind of an extended clip.” The docket master and minute entry of February 19, 2013, however, stated that the State filed a “handgun with 25 rounds magazine and 25 live rounds” into evidence with Clerk’s office. The defendant also alleges in his opposition brief that Officer Patrick misperceived the weapon the defendant was handling and that the firearm was an “Intratec Cal. 22LR,” a semi-automatic pistol, not a sub-machine gun. There is jurisprudence in the Second Circuit describing a “.22 caliber Intratec” as a “semi-automatic pistol.” See, State v. Ruffins, 41,033, p. 2 (La.App. 2 Cir. 9/20/06), 940 So.2d 45, 48. We note there is nothing in the record confirming the make , and/or model of the firearm.

Louisiana first made it illegal for felons convicted of certain crimes to possess a firearm in 1975. See, Acts 1975, No. 492, § 2. In 1980, the Louisiana Legislature amended La. R.S. 14:95.1 to add additional crimes to the list of enumerated felony convictions. See, Acts 1980, No. 279, § 1; State v. Wiggins, 2013-0649 (La.App. 1 Cir. 1/31/14) 139 So.3d 1, 4-5. The statute currently provides:

A. It is unlawful for any person who has been convicted of a crime of violence as defined in R.S. 14:2(B) which is a felony or simple burglary, burglary of a pharmacy, burglary of an inhabited dwelling, unauthorized entry of an inhabited dwelling, felony illegal use of weapons or dangerous instrumentalities, manufacture or possession of a delayed action incendiary device, manufacture or possession of a bomb, or possession of a firearm while in the possession of or during the sale or distribution of a controlled dangerous substance, or any violation of the Uniform Controlled Dangerous Substances Law1 which is a felony, or any crime which is defined as a sex offense in R.S. 15:541, or any crime defined as an attempt to | ncommit one of the above-enumerated offenses under the laws of this state, or who has been convicted under the laws of any other state or of the United States or of any foreign government or country of a crime which, if committed in this state, would be one of the above-enumerated crimes, to possess a firearm or carry a concealed weapon.
C. The provisions of this Section prohibiting the possession of firearms and carrying concealed weapons by persons who have been convicted of certain felonies shall not apply to any person who has not been convicted of any felony for a period of ten years from the date of completion of sentence, probation, parole, or suspension of sentence.
D. For the purposes of this Section, “firearm” means any pistol, revolver, rifle, shotgun, machine gun, submachine gun, black powder weapon, or assault rifle which is designed to fire or is capable of firing fixed cartridge ammunition or from which a shot or projectile is discharged by an explosive.

Previously, the Louisiana Supreme Court upheld the constitutionality of this statute in State v. Amos, 343 So.2d 166, 168 (La.1977). The Amos Court found that “The right to bear arms, like other rights guaranteed by our State Constitution, is not absolute. We have recognized that such rights may be regulated in order to protect the public health, safety, morals or general welfare so long as that regulation is a reasonable one.” Id.

However, in 2012, the Louisiana legislature amended Article 1, Section 11 of the Louisiana Constitution. See, Acts 2012, No. 874, § 1. Before its recent amendment, Article 1, Section 11 provided: “The right of each citizen to keep and bear arms shall not be abridged, but this provision shall not prevent the passage of laws to prohibit the carrying of weapons concealed on the person.” After the 2012 amendment, Article 1, Section 11 provides that: “The right of each citizen to keep | inand bear arms is fundamental and shall not be infringed. Any restriction of this right shall be subject to strict scrutiny.” La. Const. art. I, § 11.

The Court in Draughter, 2013-0914, p. 10,130 So.3d at 863, after analyzing recent United States Supreme Court decisions and the intent of the Louisiana legislature in amending the constitutional provision concluded that “the right to bear arms was always fundamental.” It further found that 2012 amendment to Article 1, Section 11 “merely sought to ensure that the review standard of an alleged infringement of this fundamental right was in keeping with the refinements made to constitutional analysis which developed since our decision in Amos.” Draughter, 2013-0914, at pp. 9-10 at 863-864 (citing Hondroulis v. Schuhmacher, 553 So.2d 398, 415 (La.1988) (government action imposing a burden on a fundamental right may be justified only by a compelling state interest, narrowly confined so as to further that compelling interest, i.e. strict scrutiny); and Carey v. Population Services Intern., 431 U.S. 678, 686, 97 S.Ct. 2010, 2016, 52 L.Ed.2d 675 (1977) (same)).

As noted above, Amos found that La. R.S. 14:95.1 did not contravene the right to bear arms guaranteed in former Article 1, Section 11 of the Louisiana Constitution because it was reasonable regulation to protect the public welfare. Amos, 843 So.2d at 168. In Draughter, the Court observed that at the time Amos |nwas decided in 1977, the reasonableness standard was consistent with the appellate review of other alleged infringements of constitutional rights. Draughter, 2013-0914, pp. 7-9,130 So.3d at 862-863. The Louisiana Supreme Court held, however, that under the current language of Article 1, Section 11, an alleged infringement on the right to bear arms is now subject to strict scrutiny. “Under strict scrutiny the government bears the burden of proving the constitutionality of the regulation by showing (1) that the regulation serves a compelling governmental interest, and (2) that the regulation is narrowly tailored to serve that compelling interest.” Id. at p. 8, 130 So.3d at 862 (quoting In re Warner, 2005-1303, p. 37 (La.4/17/09); 21 So.3d 218, 246).

In the present case, because of the 2012 amendment and the Louisiana Supreme Court’s pronouncement in Draughter, the analysis of La. R.S. 14:95.1 as applied to the defendant is subject to strict scrutiny.

Where strict judicial scrutiny is required, a state “is not entitled to the usual presumption of validity, the state rather than the complainant must carry a heavy burden of justification, the state must demonstrate its [legislation] has been structured with precision, and is tailored narrowly to serve legitimate objectives, and that it has selected the less drastic means for effectuating its objectives.” State in Interest of J.M., 2013-1717, (La.1/28/14), 144 So.3d 853, 860 (citing Southland Corp. v. Collector of Revenue for Louisiana, 321 So.2d 501, 505 (La.1975); State v. Brenan, 99-2291, p. 6 (La.5/16/00); 772 So.2d 64, 69; Warner, 2005-1303, p. 37; 21 So.3d at 246). “Strict scrutiny requires a careful examination by our courts, keeping in mind that the fundamental right at issue [the right to keep and bear arms] is one where some degree of regulation is likely to be necessary to protect the public safety.” J.M., 2013-1717, 144 So.3d at 860; (citing Grutter v. Bollinger, 539 U.S. 306, 327, 123 S.Ct. 2325, 2338,156 L.Ed.2d 304 (2003)).

In Draughter, the Louisiana Supreme Court found that La. R.S. 14:95.1 passed strict scrutiny review and did not unconstitutionally infringe upon the right of a defendant still under state supervision as a probationer or parolee to possess a firearm. The defendant in Draughter had previously pled guilty for attempted simple burglary in February 2011 and was sentenced to two years at hard labor, suspended, with two years of active probation. A year and two months later, while the defendant was still on probation, he was arrested and charged with being a felon in possession of a firearm in April 2012. The defendant moved to quash the bill of information, arguing La. R.S. 14:95.1 violated the 2012 amendment to La. Const. art. I, § 11. The trial court granted the motion, finding that that the felon in possession of a firearm statute was “facially unconstitutional, in its entirety.” Id. at p. 4, 130 So.3d at 859. The matter proceeded to the Louisiana Supreme Court on direct appeal.

On appeal, the Louisiana Supreme Court narrowed the scope of its inquiry based on the defendant’s standing. The Draughter Court found that because the defendant was on probation at the time of the offense and a parolee, the Court’s review was limited to “whether a convicted felon, who remains under state custody and supervision, may assert a constitutional right to bear arms, the infringement of which is subject to strict scrutiny review.” Draughter, 2013-0914, p. 14,13011RSo.3d at 866. The Draughter Court found that the government has a compelling interest in restricting the right of a convicted felon, still serving a portion of a criminal sentence under state supervision, to bear arms, and the statute was narrowly tailored to advance the state’s interest. Id. at p. 17, 130 So.2d at 868. As a result, the Louisiana Supreme Court reversed the trial court’s ruling, finding that the right to bear arms did not extend to the defendant, who remained under state supervision as a probationer or parolee. Id. The Draughter Court stated, in pertinent part:

As a probationer or parolee, Draughter was still serving a portion of the sentence which he received for violation of a criminal law serious enough to be categorized as a felony. Although speaking specifically of inmates in a custodial setting, the following Supreme Court characterization applies equally to those convicted felons who are serving sentences of probation and parole as they ... have necessarily shown a lapse in ability to control and conform their behavior to the legitimate standards of society by the normal impulses of self-restraint; they have shown an inability to regulate their conduct in a way that reflects either a respect for law or an appreciation of the rights of others.
Hudson [v. Palmer], 468 U.S. [517, 526], 104 S.Ct. [3194, 3200, 82 L.Ed.2d 393 (1984) ]
By necessity, the state must exercise continuing supervision and control over these convicted felons as they complete the punishments which have been meted out for their criminal activity.
For these persons still under state supervision, we easily find there to be a compelling state interest for the state’s limited infringement of even fundamental constitutional rights, including the right to possess a firearm. These persons are still serving a portion of a criminal sentence. There will necessarily be intrusion into their lives by state actors administering the supervision required by their status. The possession of a firearm is inconsistent with that status and would subject the individuals tasked with their supervision to an untenable safety risk.13 As this court found in Amos, the felon in possession statute: |14... was passed in the interest of the public and as an exercise of the police power vested in the legislature. Its purpose is to limit the possession of firearms by persons who, by their past commission of certain specified serious felonies, have demonstrated a dangerous disregard for the law and present a potential threat of further or future criminal activity.
Id., 343 So.2d at 168. The governmental interest served by this statute as applied to persons under the state’s supervision and control may be described as an interest of the “highest order.” See Warner, 2005-1303, p. 46; 21 So.3d at 252. Having found the statute serves a compelling governmental interest as applied to a person still under state supervision, we find La. R.S. 14:95.1 also satisfies the requirement that it be narrowly tailored to serve that compelling interest. The statute at issue actually advances the state’s interest in preventing persons under state supervision from possessing firearms. This rule is reasonably necessary and is the least restrictive means to serve and further the state’s interest. Because of the defendant’s status as a person under state supervision, the precise parameters of whether the statute is under-inclusive or over-inclusive in other factual settings cannot be fully explored. Warner, 2005-1303, pp. 47-50; 21 So.3d at 252-254.
Finding both a compelling state interest in the state’s regulation of a convicted felon still under the state’s supervision in La. R.S. 14:95.1 and that the statute is narrowly tailored to achieve that interest, we hold La. R.S. 14:95.1 survives strict scrutiny and is not an unconstitutional infringement of Draughter’s right to bear arms under article I, section 11, as applied to the narrow fact situation before us today.

Draughter, 2013-0914, p. 16-17, 130 So.3d at 867-868.

In State in Interest of J.M., 2013-1717, (La.1/28/14), 144 So.3d 853, the Louisiana Supreme Court addressed the constitutionality of La. R.S. 14:95.8, which prohibits the possession of a handgun by a juvenile, and La. R.S. 14:95(A)(1), which prohibits the intentional concealment of a weapon on one’s person. The juvenile defendant challenged the constitutionality of both statutes under the 2012 constitutional amendment, asserting that they failed to pass 1 ^strict scrutiny. The juvenile court found a compelling state interest for both statutes, but determined La. R.S. 14:95(A)(1) was not narrowly tailored and was thus unconstitutional as it relates to juveniles. After severing Sections C(4-7) from La. R.S. 14:95.8, the juvenile court found La. R.S. 14:95.8 was narrowly tailored to serve a compelling governmental interest. The state sought direct review of the juvenile court’s declaration of the unconstitutionality of La. R.S. 14:95(A)(1) as applied to juveniles and direct review of the juvenile court’s ruling insofar as it found La. R.S. 14:95.8(C)(4-7) unconstitutional and severed those portions of the statute from La. R.S. 14:95.8. The juvenile also applied for writs directly to Supreme Court to consider the underlying constitutionality of La. R.S. 14:95.8 with the state’s appeal. The matters were consolidated.

The Supreme Court found that La. R.S. 14:95.8 is in fact narrowly tailored to the compelling state interest of public safety. The Court noted that because juveniles exhibit a “lack of maturity, impetuosity, suggestibility and vulnerability” the possession of a handgun is a particular danger to himself as well as to society. J.M., 144 So.3d at 861. The Court also found the statute to be narrowly tailored because it only restricts the possession of handguns rather than all firearms; it only applies to those sixteen and younger; and it allows seven exceptions under which a juvenile can lawfully possess a handgun. The JM Court thus found La. R.S. 14:95.8 to withstand strict scrutiny review and reversed the juvenile court’s ruling which severed Section C(4-7) from La. R.S. 14:95.8.

Similarly, the Supreme Court held La. R.S 14:95(A)(1) passed strict scrutiny, and further found La. R.S. 14:95(A)(1) narrowly drawn to achieve a public safety interest, noting that Louisiana law prohibits the intentional [ 16concealment of weapons without a permit but allows a citizen to carry a concealed weapon with a proper permit.

In State v. Webb, 2013-1681 (La.5/7/14), 144 So.3d 971, the Louisiana Supreme Court found that La. R.S. 14:95(E), a statute which prohibits the simultaneous possession of illegal drugs and firearms, did not infringe the right to keep and bear arms. The defendant in Webb was found in possession of a marijuana “blunt” and a legally purchased handgun. The defendant was subsequently arrested and charged with violating La. R.S. 14:95(E). The defendant was not charged with misdemeanor possession of marijuana and had no prior felony convictions.

After the trial court denied the defendant’s motion to quash the bill of information, the defendant filed writs with this Court, arguing that La. R.S. 14:95(E) unconstitutional in light of the recent constitutional amendment. This Court, pursuant to the State’s motion to stay appeal, declined to exercise supervisory review, as Draughter was pending before the Supreme Court. Because the 2012 constitutional amendment generated substantial litigation, to provide guidance the Louisiana Supreme Court granted writs to address the constitutionality of La. R.S. 14:95(E).

The Louisiana Supreme Court found the state has a compelling interest in restricting simultaneous possession of illegal drugs and firearms to curtail drug trafficking and promote public safety. The Webb Court noted the legislature’s intent in enacting La. R.S. 14:95(E) was “to prevent those engaged in drug use and distribution from engaging in the violent behavior endemic to the drug trade” and the connection between illegal drugs and gun violence. Webb, 2013-1681, 144 So.3d at 979 (citing State v. Blanchard, 99-3439, p. 3, (La.1/18/01), 776 So.2d 1165, 1169-1170; Smith v. U.S., 508 U.S. 223, 240, 113 S.Ct. 2050, 124 L.Ed.2d 138 (1993)). The Louisiana Supreme Court further found that the firearm possession element in La. R.S. 14:95(E) was not really a restriction on the right to bear arms in the typical sense, but rather operates as an enhancing factor, and by possessing a firearm while in possession of an illegal drug, a misdemeanor crime, such as simple marijuana possession, is enhanced to a felony. The Webb Court thus held that when a person is engaged in the unlawful conduct of possessing illegal drugs, that person qualifies his right to engage in what would otherwise be the exercise of the fundamental right to bear arms and legitimate possession of a firearm. Webb, 2013-1681, 144 So.3d at 982-983; Jones v. Helms, 452 U.S. 412, 420, 101 S.Ct. 2434, 2440-2441, 69 L.Ed.2d 118 (1981) (parent’s own misconduct in abandoning his child qualified his right to travel interstate). As a result, the Louisiana Supreme Court found that La. R.S. 14:95(E) was narrowly tailored to serve the state’s interest. Accordingly, the Court concluded there is no unconstitutional deprivation of the right to bear arms under the circumstances and affirmed the trial court’s denial of the motion to quash.

Here, unlike in Draughter, the defendant was not on probation at the time he committed the charged offense in May of 2012. Although the defendant was sentenced to five years’ probation for simple burglary on June 20, 2010, after approximately nineteen months, the trial court terminated the defendant’s probation satisfactorily on February 3, 2012. Because the defendant was no longer 11sserving a portion of his sentence or under the state’s supervision, the compelling state interests for necessary governmental intrusion articulated in Draughter are inapplicable. Moreover, contrary to Webb, the defendant was not in possession of an illegal drug while he was in possession of the firearm and thus does not involve the concern for the drug related violence or public safety interests associated with drug trafficking. Notably, however, the Webb Court found La. R.S. 14:95(E), the statute prohibiting simultaneous illegal drug and gun possession, satisfied strict scrutiny review despite that the defendant in Webb had no prior felony convictions and legally purchased the gun. Thus, the fact that the defendant’s underlying felony is non-violent is not necessarily fatal in finding a compelling a state interest in restricting the defendant’s access to use and possess a firearm.

The Louisiana Supreme Court has recognized that La. R.S. 14:95.1 was enacted in 1975 for the purpose of and in an effort to ensure safety of the public from “persons who, by their past commission of certain specified serious felonies, have demonstrated a dangerous disregard for the law and present a potential threat of further or future criminal activity.” Draughter, 2013-0914, pp. 5, 16-17, 130 So.3d at 860, 867 (citing Amos, 343 So.2d at 168).

In the instant case, the record shows that on January 19, 2011, the defendant committed simple burglary of a Kia Borrego owned by the city. Although the defendant’s prior felony was not a crime of violence as defined by La. R.S. 14:2(B), by burglarizing a city-owned vehicle the defendant has shown an apparent disregard for the law and the rights of others. See, United States v. Everist, 368 F.3d 517, 519 (5th Cir.2004) (stating “[i]rrespective of whether his offense was |19violent in nature, a felon has shown manifest disregard for the rights of others” and “may not justly complain of the limitation on his liberty when his possession of firearms would otherwise threaten the security of his fellow citizens”). Moreover, the record provides that approximately three months after the defendant’s probation was terminated, he possessed a firearm and according to the Officer Patrick “attempted to get in” a car with two other men in an empty lot. Officer Patrick also testified the defendant was holding the gun close to his waistband “attempting to conceal it,” and when the defendant observed the officer he threw the gun under the vehicle. Although the parties disagree as to the type of firearm found in the defendant’s possession, it is undisputed that the weapon was twenty-two caliber and fully loaded. Additionally, because of his prior felony conviction, the defendant likely employed some unlawful means to obtain the weapon at issue. See, Webb, 2013-1681, 144 So.3d at 979 (noting that possessing marijuana is illegal and that the defendant must have engaged in unlawful methods to obtain the drug). Officer Patrick further stated a database search revealed that the defendant was previously arrested for illegal carrying of a weapon. Considering the prior felony conviction and the circumstances surrounding the arrest for the instant offense, the defendant has shown that he poses more of a heightened risk to public safety than a law abiding citizen. As such, the state has a compelling interest in limiting the defendant’s access to a firearm.

Further, as the defendant was found in possession of a submachine gun, as argued by the State and testified to by Officer Patrick, we find a compelling state interest for public safety as La. R.S. 40:1752 prohibits any person, excluding certain enumerated exceptions, from possessing or keeping a machine gun or a sub-machine gun in Louisiana. See, La. R.S. 40:1751 (defining machine guns as |¡>n“all firearms of any caliber, commonly known as machine rifles, machine guns, and sub-machine guns, capable of automatically discharging more than eight cartridges successively without reloading, in which the ammunition is fed to the gun from or by means of clips, disks, belts, or some other separable mechanical device”).

The next issue is whether La. R.S. 14:95.1 is narrowly tailored to serve the state’s interest in safeguarding the public. Whether a law is “precisely drawn or narrowly tailored” examines the “tightness of fit between the regulation and the state interest.” Webb, 2013-1681, 144 So.3d at 980 (quoting Warner, 2005-1303, p. 47-48, 21 So.3d at 253). A narrowly tailored rule must actually advance the interest ■ asserted. Warner, 2005-1303, p. 48, 21 So.3d at 253.

The Louisiana Supreme Court’s analysis in Webb is helpful in this regard. The Webb Court i'eeognized that although the right to bear arms is a fundamental right, the defendant qualified his ability to exercise that right by possessing an illegal drug. Thus, it was the defendant’s possession of drugs that made his possession of a firearm unlawful under La. R.S. 14:95(E). As a result, the Webb Court found La. R.S. 14:95(E) was narrowly tailored to achieve the state’s compelling interest for public safety.

Here, under La. R.S. 19:95.1, it is not the possession of a firearm alone that is a felony; possession a firearm is made a felony only when the person committing the act has previously been convicted of one of the enumerated felony offenses. See, State v. Williams, 358 So.2d 943, 946 (La.1978) (the conduct proscribed by La. R.S. 14:95.1 is dependent upon the circumstance of an earlier conviction); State v. Wiggins, 2013-0649 (La.App. 1 Cir. 1/31/14) 139 So.3d 1, 8 (the act of possessing or concealing a weapon becomes a felony |2]OnIy because the offender has the status of a convicted felon). Therefore, like the defendant in Webb, by committing and being convicted of simple burglary, an enumerated felony, the defendant qualified his right to otherwise lawfully possess a firearm. Moreover, La. R.S. 14:95.1 limits it application to certain specified felony offenses and includes a time limit of ten years from the date the sentence is completed for the applicability of the firearm ban. The statute also defines what constitutes a firearm. By targeting criminals who have shown a proclivity for disregarding the law and intruding on rights of others and by placing a ten year limit on the applicability, La. R.S. 19:95.1 advances the state’s interest in safeguarding the public from those who pose a threat to society. See, Wiggins, 2013-0649, 139 So.3d 1 at 8 (finding the felon in possession of firearm statute narrowly tailored despite the defendant’s prior non-violent conviction for simple burglary of an inhabited dwelling when the defendant subsequently possessed a firearm and used it in the attempt to kill, demonstrating a dangerous disregard for the law).

Moreover, as noted by the Louisiana Supreme Court, the voters’ ratification of strict scrutiny as a review standard of alleged infringements on the right to keep and bear arms was not meant to invalidate every restriction on firearms. J.M., 2013-1717, 144 So.3d at 860. The legislature’s intention was to “secure a continued individual right to bear arms by Louisiana citizens under the Louisiana Constitution, protected from possible future judicial or legislative erosion” Draughter, 2013-0914, p. 7, 130 So.3d at 861. The Supreme Court thus concluded that “the right bear

to arms has always been a fundamental right," and the amendment to the constitutional provision merely sought to ensure that the review standard of an alleged infringement of this fundamental right was consistent withJ~developing standards of constitutional analysis. Id. at p. 10, 130 So.3d at 863. The restrictions imposed on firearm possession by La. R.S. 14:95.1 for convicted felons do not fall `within the scope of liberties that the 2012 amendment to Article 1, Section 11 of the Louisiana Constitution was enacted or ratified to protect. See, Webb, 2013-1681, 144 So.3d at 978, 983 (stating that "Strict scrutiny is the most rigorous test for determining whether a law is constitutional. Laws restricting fundamental rights are subject to strict scrutiny because they are considered to be so essential to the structure of our society, in which citizens enjoy `ordered liberty;" and finding that nothing in La. Const. art. I § 1 suggests that "the electorate, whose intent is ultimately the intent that governs, believed that possessing firearms with illegal drugs meets the electorate's expectations of a society whose hallmark is ordered liberty.") As such, the right to bear arms does not extend to the defendant as a convicted felon.

Based on the foregoing, La. R.S. 14: 95.1, does not unconstitutionally infringe on the defendant's right to bear arms. The defendant is a convicted felon who has shown an indifference to the laws of the State and disrespect for the property of others. The State has a compelling interest in keeping guns out of the hands of convicted felons to protect the public, and La. R.S. 14:95.1 is tailored to achieve that interest as it regulates the possession and use of firearms by persons convicted of certain felonies for a specific time period. Moreover, it is the defendant's own actions, i.e., past felony conviction, that restricts his ability to exercise his fundamental right and lawfully possess a firearm.

Accordingly, the trial court erred in granting the motion to quash and finding La. R.S. 14:95.1 unconstitutional as applied to the defendant.

j~CONCLUSION

For the aforementioned reasons, we reverse the trial court's ruling, which granted the defendant's motion to quash the bill of information and found that La. R.S. 14:95.1 was unconstitutional as applied to the defendant.

REVERSED.

      . Before its recent amendment, Article 1, Section 11 of the Louisiana Constitution provided: “The right of each citizen to keep and bear arms shall not be abridged, but this provision shall not prevent the passage of laws to prohibit the carrying of weapons concealed on the person.” After the 2012 amendment, Article 1, Section 11 provides that: "The right of each citizen to keep and bear arms is fundamental and shall not be infringed. Any restriction of this right shall be subject to strict scrutiny.” The effective date of this new amendment was December 10, 2012.

      . The trial court is referencing La. R.S. 14:2(B), which defines a "crime of violence” as an “an offense that has, as an element, the use, attempted use, or threatened use of physical force against the person or property of another, and that, by its very nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense or an offense that involves the possession or use of a dangerous weapon.” The statute also lists forty-four offenses as crimes of violence. Simple burglary, however, is not one of the enumerated offenses.

      . State v. Draughter, 2013-0914 (La. 12/10/13), 130 So.3d 855.

      . Officer Patrick testified that during the arrest he "changed the signal to a 95.”; see, La. R.S. 14:95 (prohibiting the illegal carrying of weapons).

      . In State v. Gregory, 2013-1593, pp. 6-7 (La.App. 4 Cir. 3/5/14), 137 So.3d 663, 668 this Court established a guideline for reviewing a trial court’s ruling based on mixed questions of law and fact. The Gregory Court stated:
      Our review to determine whether a trial judge abused her discretion in ruling on this mixed question of law and fact requires us to examine both her findings of fact and her choice of law to be applied to those facts. First, in reviewing a trial judge’s findings of fact, we are extremely deferential and "will 'not overturn those findings unless there is no evidence to support’ ” them. State v. McClendon, 13-1454, p. 6 (La.App. 4 Cir. 1/30/14), 133 So.3d 239, 245, writ denied 14-0324 (La.2/19/14), 133 So.3d 667 (quoting State v. Wells, 08-2262, p. 4 (La.7/6/10), 45 So.3d 577, 580). "This extremely heightened deference is rooted in the limitations of our appellate jurisdiction set forth in La. Const, art. 5, § 10(B), which provides: 'In criminal cases, [an appellate court's] jurisdiction extends only to questions of law.’ ’’ Id.

      Second, we review whether the trial judge’s choice and application of law were proper. A trial judge necessarily abuses her discretion in denying a motion to quash if her ruling is based on an erroneous view of the law. See State v. Hayes, 10-1538, p. 11 (La.App. 4 Cir. 9/1/11), 75 So.3d 8, 15 (citing Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 405, 110 S.Ct. 2447, 110 L.Ed.2d 359 (1990); United States v. Taylor, 487 U.S. 326, 336, 108 S.Ct. 2413, 101 L.Ed.2d 297 (1988) (Noting that "discretionary choices are not left to a court’s inclination, but to its judgment,’’ which is guided by sound legal principles)). If a trial judge in exercising her discretion "bases [her] ruling upon an erroneous view or application of the law, [her] ruling is not entitled to our deference.” State v. Dillon, 11-0188, p. 4 (La.App. 4 Cir. 8/24/11), 72 So.3d 473, 476. Thus, if we find that the trial judge improperly applied or stated the law, we will adopt the trial judge’s findings of fact, provided that they are supported by any evidence, and apply those facts to the proper legal principles.

      . It is important to note, however, that the trial court in Draughter granted the motion to quash on the grounds that the felon in possession of a firearm statute was “facially unconstitutional, in its entirety” and thus did not making factual findings. Draughter, 2013-0914, p. 4, 130 So.3d at 859.

      . The effective date of the amendment is December 10, 2012. See, Draughter, 2013-0914, p. 7-8, 130 So.3d at 862.

      . See, District of Columbia v. Heller, 554 U.S. 570, 635, 128 S.Ct. 2783, 2821-22, 171 L.Ed.2d 637 (2008), (holding that the Second Amendment protects the right to keep and bear arms for the purpose of self-defense and struck down a District of Columbia law that banned the possession of handguns in the home); McDonald v. City of Chicago, Ill., 561 U.S. 742, 130 S.Ct. 3020, 3042, 177 L.Ed.2d 894 (2010) (noting that a majority of the States in 1868 recognized the right to keep and bear arms as being among the foundational rights necessary to our system of government, and the framers and ratifiers of the Fourteenth Amendment counted the right to keep and bear arms among those fundamental rights necessary to our system of ordered liberty).

      . Although the defendant committed the offense on May 10, 2012, prior to the effective date of the amendment, because his criminal case was pending at the time of the effective date, the amendment has retroactive effect and applies to this case. See, State v. Draughter, 2013-0914, p. 11, 130 So.3d at 864 (noting that while generally legislation has prospective effect from its effective date, it found that the constitutional amendment had retroactive effect to all cases pending on direct review or not yet final).

      . The Court also noted La. R.S. 14:95(E) causes the least interference possible to the right to bear and keep arms because not every instance of firearm possession is an enhancement of criminal conduct. Webb, 2013-1681, 144 So.3d at 982; Blanchard, 99-3439 at 9, 776 So.2d at 1173 (describing instances where constructive possession of a firearm has no nexus to illegal drugs).

      . The record does not contain the details of the prior offense; it is thus unclear what type of felony or theft the defendant intended to commit therein.