author: THIBODEAUX, Chief Judge.

text:
    Dexter MITCHELL v. ARTCRETE, INC.
    No. 09-492.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 9, 2009.
    Rehearing Denied Jan. 13, 2010.

      George A. Flournoy, Flournoy & Dog-gett (APLC), Alexandria, LA, for Plaintiff/Appellant-Dexter Mitchell.
    James J. Hautot, Jr., Jason E. Wilson, Judice & Adley, Lafayette, LA for Defendant/Appellee-Artcrete, Inc.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, OSWALD A. DECUIR, and BILLY HOWARD EZELL, Judges.
   THIBODEAUX, Chief Judge.

[ [The plaintiff, Dexter Mitchell, appeals a judgment of the Office of Workers’ Compensation (OWC) in favor of the defendant, Artcrete, Inc., (1) denying Mitchell indemnity benefits for the period of July 16, 2007 through October 23, 2007; (2) refusing to order that Artcrete pay medication expenses in the amount of $182.06 and indemnity benefits for the period of May 18, 2007 through May 25, 2007; (3) refusing to acknowledge Artcrete’s stipulations regarding its duty to pay these medication expenses as well as the indemnity benefits due for the week of May 18, 2007 through May 25, 2007; (4) denying Mitchell’s contention that Artcrete unreasonably delayed the resumption of indemnity benefits after October 24, 2007; and, (5) awarding Mitchell only $2,500 in attorney fees.

For the following reasons, we affirm the judgment with respect to Mitchell’s benefit payments for the period from July 16, 2007 through October 23, 2007 and with respect to Artcrete’s entitlement to a credit for overpaid benefits. As to the prescription benefits and as to the benefits paid for the week of May 18, 2007 through May 25, 2007, we reverse and award both penalties and attorney fees for Artcrete’s failure to pay those benefits.

Evidence that on April 27, 2007, Mitchell sustained injuries while in the course and scope of his employment is well-supported and is not in dispute. His ability to fully return to work following those injuries and Artcrete’s timeliness in payment of benefits and medication expenses to treat those injuries are in dispute, however. We find that Mitchell was released for full duty by his physician on July 16, 2007, and, thus, was not entitled to benefits for the period of July 16, 2007 |2through October 23, 2007. Moreover, though Artcrete timely remitted payment for some of Mitchell’s expenses and benefits, it did not do so for other expenses and benefits. Thus, we find that Mitchell is entitled to an award of penalties in the amount of $8,000 and attorney fees in the amount of $5,000 for work done at the trial level in this case and an additional $3,000 for work done on this appeal.

I.

ISSUES

We must decide whether:

(1) the OWC manifestly erred in denying Mitchell indemnity benefits for the period of July 16, 2007 through October 23, 2007;

(2) the OWC manifestly erred in refusing to order that Artcrete pay medication expenses in the amount of $182.06 and indemnity benefits for the period of May 18, 2007 through May 25, 2007;

(3) the OWC manifestly erred in refusing to acknowledge Artcrete’s stipulations regarding its duty to pay said medication expenses as well as the benefits due for the week of May 18, 2007 through May 25, 2007;

(4) the OWC manifestly erred in finding that Artcrete acted reasonably in delaying the resumption of indemnity benefits after October 24, 2007; and,

(5) the OWC manifestly erred in awarding Mitchell only $2,500 in attorney fees.

II.

FACTS AND PROCEDURAL HISTORY

Mitchell was employed by Artcrete, a concrete manufacturer, in Natchitoches, Louisiana. On April 27, 2007, a pallet of concrete fell on Mitchell’s right foot. Mitchell immediately reported the incident to his supervisor, and Mitchell |3was taken to a local hospital for evaluation. The next day, equipped with crutches, Mitchell attempted to return to work at Artcrete, but the company told Mitchell that it had no work suitable for him, given his limited mobility.

On May 7, 2007, Mitchell filed a claim for indemnity benefits with the Office of Workers’ Compensation. At the time Mitchell filed his claim, no indemnity benefits were due to him. Indeed, immediately following the accident, and for three weeks thereafter, Artcrete continued to pay Mitchell’s full wages. Artcrete did not pay Mitchell anything for the week of May 18, 2007 through May 25, 2007, but the company began paying indemnity payments to Mitchell in the amount of $213.50 per week beginning on May 25, 2007.

On June 27, 2007, Dr. Stephen Cox, Mitchell’s primary care physician, evaluated Mitchell and released him to full-duty work effective July 17, 2007. Dr. Cox scheduled a six-week follow-up visit, but Mitchell did not return to Dr. Cox’s office until October 24, 2007.

Because Mitchell was released to work by Dr. Cox, Artcrete discontinued benefit payments on August 3, 2007. Following his release to work on July 16, 2007, Mitchell secured temporary employment as a delivery person for the Natchitoches Times. In Fall 2007, however, Mitchell experienced recurring pain in his injured foot. On October 24, 2007, Dr. Cox reevaluated Mitchell and placed him on restriction from all work. Mitchell’s counsel demanded that Artcrete promptly resume payment of indemnity benefits, but Art-crete did not do so until December 2007.

Jálll.

LAW AND DISCUSSION

Standard of Review

The supreme court articulated the standard of review in workers’ compensation cases as follows:

In worker’s compensation cases, the appropriate standard of review to be applied by the appellate court to the OWC’s findings of fact is the “manifest error-clearly wrong” standard. Brown v. Coastal Construction & Engineering, Inc., 96-2705 (La.App. 1 Cir. 11/7/97), 704 So.2d 8, 10, (citing Alexander v. Pellerin Marble & Granite, 93-1698, pp. 5-6 (La.1/14/94), 630 So.2d 706, 710). Accordingly, the findings of the OWC will not be set aside by a reviewing court unless they are found to be clearly wrong in light of the record viewed in its entirety. Alexander, 630 So.2d at 710. Where there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable. Robinson v. North American Salt Co., 02-1869 (La.App. 1 Cir. [6/27/03]), 865 So.2d 98, 105.

Dean v. Southmark Const, 03-1051, p. 7 (La.7/6/04), 879 So.2d 112, 117.

Indemnity Benefits for July 16, 2007 through October 23, 2007

Mitchell contends that the WCJ erred in refusing to award payment and penalties for Artcrete’s failure to provide indemnity benefits for the period of July 16, 2007 through October 23, 2007. Dr. Cox evaluated Mitchell on June 26, 2007, and concluded that Mitchell could return to full duty at work. Specifically, Dr. Cox stated, “At this time, we are going to return Mr. Mitchell back to his work on 07/16/2007.... I will return him to full duty. If he has any problems after that, we will reevaluate him but he should be fully healed and be able to return to full activity.”

| ^Mitchell attempted to find work following Dr. Cox’s release, and, indeed, Mitchell worked delivering papers for the Natchi-toches Times in September 2007. On October 24, 2007, Dr. Cox again evaluated Mitchell, and recommended that Mitchell rest his foot. Dr. Cox restricted Mitchell from all work.

Mitchell asserts that he continued to suffer pain and discomfort in his foot after Dr. Cox released him to full duty in July 2007. He argues that he was not “cured” of his injuries and that Dr. Cox’s work release was “conditional.” Moreover, Mitchell contends that he should not be penalized for Dr. Cox’s busy schedule and for Mitchell’s inability to schedule an appointment with Dr. Cox before October 24, 2007.

The WCJ disagreed. The WCJ noted that Dr. Cox’s medical release was a full-duty release to work and that Mitchell did, indeed, attempt to look for work during that time.

Appellate courts should not disturb findings of fact absent manifest error. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978). In Arceneaux, the supreme court spelled out a two part test for review of facts:

(1) The appellate court must find from the record that there is a reasonable factual basis for the findings, and
(2) The appellate court must further determine that the record establishes that the findings are not clearly wrong.

In Mart v. Hill, 505 So.2d 1120, 1127 (La.1987), the supreme court cited Arcen-eaux, then further stated:

[I]f an appellate court concludes that the trial court’s factual findings are clearly wrong, the mere fact that some record evidence appears which would furnish a reasonable factual basis for the contested findings does not require affirmance. Davis v. Owen, 368 So.2d 1052, 1056 (La.1979). Although appellate courts must accord great weight to the factual findings of the trial judge, these same courts have a duty to determine if the fact finder was ^justified in his conclusions. See, e.g., Parker v. Rhodes, 260 So.2d 706, 717 (La.App. 2 Cir.1972). An appellate court is not required, because of the foregoing principles of appellate review, to affirm the trier of fact’s refusal to accept as credible uncontradicted testimony or greatly preponderant objectively-corroborated testimony where the record indicates no sound reason for its rejection and where the factual finding itself has been reached by overlooking applicable legal principles. West v. Bayou Vista Manor, Inc., 371 So.2d 1146, 1150 (La.1979).

Here, we consider not only the medical evidence that clearly supports Dr. Cox’s unconditional release of Mitchell to work on July 16, 2007, but we also consider the WCJ’s interpretation of the facts. The WCJ noted that Mitchell failed to return to Dr. Cox’s office until October 24, 2007, despite Dr. Cox’s recommendation that Mitchell return to Dr. Cox for reevaluation on or about August 8, 2007. The WCJ also noted that Mitchell looked for, and found, other employment during this time period.

Nothing in the record contradicts Dr. Cox’s orders that Mitchell be released to “full duty,” and nothing in the record shows that Mitchell could not have scheduled an appointment with Dr. Cox prior to October 24, 2007, if the need to do so had arisen. Applying the standard set for us in Arceneaux and further articulated in Mart, we find that the WCJ reasonably assessed the body of facts, and no manifest error occurred. Thus, we affirm the judgment that Mitchell is not entitled to the receipt of indemnity benefits from July 16, 2007 through October 23, 2007.

Pharmaceutical Expenses

Mitchell contends that the WCJ erred in failing to require Artcrete to pay $182.06 in pharmaceutical expenses Mitchell incurred as a result of his injury. Mitchell submitted the pharmaceutical receipts to Artcrete for payment. Artcrete stipulated at trial that it had not yet paid the pharmaceutical expenses and that it was 17required to pay them. Thus, at trial, Mitchell did not present evidence relating to the pharmaceutical expenses.

In his ruling, however, the WCJ found that Artcrete properly reimbursed Mitchell for the pharmaceutical expenses, and the WCJ did not assess penalties and attorney fees for that claim. On appeal, Mitchell argues that at trial Artcrete judicially confessed to owing the pharmaceutical expenses and that the WCJ was erroneous in ignoring that confession.

We agree. Louisiana Civil Code Article 1853 defines a judicial confession as “a declaration made by a party in a judicial proceeding.” Louisiana Civil Code Article 1853 further provides that a judicial confession “constitutes full proof against the party who made it” and that it “is indivisible and it may be revoked only on the ground of error of fact.” Once a judicial confession is made by a party, it “has the effect of waiving evidence as to the subject of the admission-of withdrawing the subject matter of the confession from issue.” Cichirillo v. Avondale Indus., Inc., 04-2894, p. 6 (La.11/29/05), 917 So.2d 424, 429 (citing Cheatham v. City of New Orleans, 378 So.2d 369 (La.1979); Sutton’s Steel & Supply, Inc. v. BellSouth Mobility, Inc., 00-511 (LaApp. 3 Cir. 12/13/00), 776 So.2d 589, writ denied, 01-152 (La.3/16/01), 787 So.2d 316). A judicial confession by a party, however, does not preclude that party from denying the correctness of the admission, unless the party claiming the benefit from the admission has relied on the admission to his prejudice. Crawford v. Deshotels, 359 So.2d 118 (La.1978).

As this court explained in Leday v. Safeway Ins. Co. of La., 04-610, pp. 5-6 (La.App. 3 Cir. 11/17/04), 888 So.2d 1084, 1088:

A judicial confession under La.Civ. Code art. 1853 constitutes incontrovertible evidence of a particular issue and serves to waive the necessity of any further proof on that issue. Ramelow v. Bd. of Trustees of the [Univ.] of Louisiana System, 03-1131 (La.App. 3 Cir. 3/31/04), 870 So.2d 415, writ denied, 04-1042 (La.6/18/04), 888 So.2d 184; C.T. Traina, Inc. v. Sunshine Plaza, Inc., 03-1003 (La.12/3/03), 861 So.2d 156. In order for a party’s statement to constitute a judicial confession, it must be an express acknowledgment of an adverse fact. Jones v. Gillen, 564 So.2d 1274 (La.App. 5 Cir.1990); Sanders v. Earnest, 34,656 (La.App. 2 Cir. 7/24/01), 793 So.2d 393; State v. Lamb, 31,919 (La.App. 2 Cir. 5/7/99), 732 So.2d 1270. Additionally, “the adverse party must have believed the fact was no longer at issue or must have relied on it, to his detriment.” Lamb, 732 So.2d at 1272; Alexis v. [Metro.] Life [Ins.] Co., 604 So.2d 581 (La.1992); Jefferson Parish v. [Fid,.] & Deposit Co., 95-951 (La.App. 5 Cir. 4/30/96), 673 So.2d 1238; Jones, 564 So.2d 1274.

Here, counsel for Artcrete plainly stated at trial that Artcrete had not yet paid the pharmaceutical expenses, and, thus, was required to pay them. Given the stipulation provided by Artcrete, Mitchell’s counsel did not address the issue of pharmaceutical expenses and did not offer evidence regarding these expenses. Mitchell’s counsel clearly relied on the stipulation made by Artcrete’s counsel. Artcrete’s claims that the stipulation was based on an error of fact do not subvert Mitchell’s reliance on the stipulation.

Since Mitchell relied on Artcrete’s judicial confession and consequently did not present evidence of the pharmaceutical expenses at trial, we consider the evidence presented in Mitchell’s motion for a new trial. There, Mitchell refutes Artcrete’s testimony that it paid the pharmaceutical expenses. Specifically, Mitchell claims that he never received reimbursement for such expenses. Indeed, no evidence in the record demonstrates that Mitchell received the payments Artcrete claims to have made. No evidence exists that Artcrete ever mailed the payments or that Mitchell ever cashed checks supposedly sent by Artcrete.

Thus, having considered Mitchell’s claims, we find that the WCJ erred in refusing to treat Artcrete’s stipulation regarding the pharmaceutical expenses as a | ¡judicial confession. We reverse the WCJ’s decision on this issue and find that Artcrete owes Mitchell $182.06 in pharmaceutical expenses. We also assess a penalty of $8,000.00 ($2,000.00 for each of the four expenses submitted but not paid) to Artcrete for failing to timely pay these expenses.

Payment of Indemnity Benefits for May 18, 2007 through May 25, 2007

Mitchell contends that Artcrete’s stipulation at trial that it owed the benefits to Mitchell requires that Artcrete pay Mitchell the $213.50 in indemnity benefits for that week and that Artcrete should be penalized for not timely paying the benefits. Artcrete claims that since it overpaid benefits to Mitchell prior to the week of May 18, 2007 through May 25, 2007, it is not required to pay him an additional sum for that week.

The WCJ agreed with Artcrete and concluded that Arterete’s overpayments were enough to compensate Mitchell for the week of May 18, 2007 through May 25, 2007. We disagree with the WCJ’s conclusion. Louisiana Revised Statutes 23:1206 provides as follows: “Any voluntary payment or unearned wages paid by the employer or insurer either in money or otherwise, to the employee or dependent, and accepted by the employee, [which] were not due and payable when made, may be deducted from the payments to be made as compensation.”

This statute entitles an employer to a credit for previous overpayments from future compensation, which may be due. Monceaux v. R & R Const., Inc., 05-533 (La.App. 3 Cir. 12/30/05), 919 So.2d 795 (emphasis added) (citations omitted).

Here, we do not dispute Artcrete’s contention that it is entitled to credit for its overpayments to Mitchell. The credit, however, must be applied to future compensation owed to Mitchell, not, as Art-crete now argues, to compensation that was currently due. Artcrete’s counsel even acknowledged this fact at trial by stating,

110While I realize that the indemnity that was paid following that week which commenced on 5/26/07, he was paid significantly more than he was owed at that time. The defendants did not necessarily take that to be interpreted as a credit on what was owed the prior week, but as I did outline in my pretrial statement, since claimant is and does continue to receive ongoing indemnity benefits, the defendant reserves its right to take a partial credit or a whole credit, but to reduce Mr. Mitchell’s benefits in a reasonable fashion to recapture the overpayment at some point in the future. But to pay the first week, you know, we will stipulate that we will pay that in the amount of Two Hundred and Thirteen Dollars and Fifty Cents ($213.50).

We find that the WCJ erred by not awarding Mitchell indemnity benefits for the week of May 18, 2007 through May 25, 2007. Thus, we find that Artcrete must compensate Mitchell $213.50 for that week, and we assess a penalty of $2,000 to Art-crete for its failure to timely pay such amount.

Delay in the Resumption of Benefits

Mitchell argues that the WCJ erred in failing to award penalties and attorney fees for Artcrete’s delay in resumption of benefits following Mitchell’s second work restriction which began on October 24, 2007. On October 24, 2007, Mitchell saw Dr. Cox and complained of disabling pain in his injured foot. Dr. Cox restricted Mitchell from all work. Following Dr. Cox’s recommendation, Mitchell’s counsel sent several pieces of correspondence to Artcrete’s counsel demanding resumption of indemnity benefits. Artcrete, however, did not resume paying Mitchell indemnity benefits until December 20, 2007.

As we previously discussed, it is well-settled that La. R.S. 23:1206 entitles an employer to a credit for previous overpay-ments from future compensation which may be due. Monceaux, 919 So.2d 795. Further, this statute applies even if the overpayment is due to the employer’s error in calculating benefits. Ferrand, v. D.H.L. Co., 614 So.2d 350 (La.App. 4 Cir.1993). We have also held that discontinuation of benefits until the overpayment is recouped is permissible and proper under this same statute. See Breaux v. Petro Drive, Inc., 534 So.2d 48 (La.App. 3 Cir.1988).

It is undisputed that Mitchell is entitled to weekly benefits of $213.50. For three weeks following Mitchell’s April 28, 2007 injury, Artcrete continued to pay Mitchell his full wages, $320 per week. After overlooking the week of May 18, 2007 through May 25, 2007, Artcrete paid Mitchell indemnity benefits from May 26, 2007 through August 3, 2007 at the incorrect rate of $790 every two weeks for a total payment of $4,062 for that period of time. Thus, Artcrete paid a total of $5,022 to Mitchell from April 29, 2007 through August 3, 2007.

Mitchell was entitled to benefits from April 28, 2007, the date after the injury, through July 16, 2007, the date Dr. Cox released him to full duty. The total amount of benefits owed to Mitchell for that time period was $2,438.17. Artcrete, therefore, overpaid Mitchell by $2,583.83 and was entitled to a credit through mid-January 2008.

Because Artcrete accumulated a credit of indemnity payments, it was permissible and reasonable for the company to suspend payments until the overpayment was satisfied. Thus, we find no error in the WCJ’s refusal to award penalties and attorney fees for Artcrete’s suspension of indemnity payments during that time period.

Attorney Fees

Mitchell contends that the WCJ erred in awarding only $2,500 in attorney fees and requests that we assess additional attorney fees for services rendered at the trial level and in association with this appeal. According to Naquin v. Uniroyal, Inc., 405 So.2d 525 (La.1981), factors used in determining attorney fees in workers’ compensation cases are (I) the degree of skill and ability exercised, (ii) the amount of the claim, and (iii) the amount of time devoted to the case. Considering the efforts of Mitchell’s attorney, we find error in the WCJ’s $2,500 award for attorney fees. It is clear from the record that Mitchell’s attorney spent a considerable amount of time pursuing his client’s case and vigorously enforcing Mitchell’s rights at the trial level. Moreover, counsel’s efforts on appeal resulted in the imposition of additional penalties against Artcrete. Finally, we recognize that the workers’ compensation act is social legislation. To effectuate the salutary purposes behind the workers’ compensation framework and to encourage attorneys to represent injured workers in workers’ compensation cases, attorney fees should be liberally granted.

In Jones v. Universal Fabricators, 99-1370 pp. 10-11 (La.App. 3 Cir. 2/9/00), 758 So.2d 856, 862-63, writ denied, 00-0742 (La.5/12/00), 762 So.2d 13, this court noted:

We emphasize that adequate attorney’s fees in workers’ compensation cases is the basis for an injured employee obtaining effective counsel. La. R.S. 23:1221, which authorizes attorney’s fees, encourages the retention of effective counsel by an employee who is injured, unemployed and unable to pay for capable representation.
It is evident that an employee in workers’ compensation cases by definition is placed in a disadvantageous position. The employee is injured, unemployed and often totally lacking in financial resources. In contrast, the employer has the financial means to obtain attorneys to prepare and argue its case. The primary purpose of workers’ compensation is to protect injured employees from impoverishment. If an employee is arbitrarily deprived of benefits, the attorney who litigates on his behalf and is successful at showing arbitrary and capricious conduct on the part of the employer, has aided not only his client but also the administration of the workers’ compensation system. This work is very important as it helps discourage others who might seek to further their own economic fortune at the | ^expense of persons injured in their employ. Considering these goals of workers’ compensation, we find that an increase in attorney’s fees is warranted.

For the efforts by Mitchell’s attorney, we increase the award to $5,000 for the work done at the trial level and an additional $3,000 for the work done on appeal.

IV.

CONCLUSION

Based upon the foregoing, we reverse the portion of the judgment of the OWC denying payment of Mitchell’s pharmaceutical expenses in the amount of $182.06, and we assess a penalty of $8,000 against Artcrete for the non-payment of those expenses. We also reverse the portion of the judgment denying payment of indemnity benefits for the week of May 18, 2007 through May 25, 2007, and we order Art-crete to pay $213.50 plus legal interest to Mitchell for that week. We also assess a penalty of $2,000 against Artcrete for failure to timely pay such amount. Because the WCJ previously assessed a penalty of $2,000 against Artcrete for failing to timely pay Mitchell’s physical therapy expenses and because La. R.S. 23:1201 limits penalties against employers to $8,000, we hold that Artcrete must pay a maximum of $8,000 in penalties to Mitchell. Finally, we increase the award of attorney fees to award $5,000 to Mitchell’s counsel for the work done at the trial level and an additional $3,000 for the work done on appeal.

All costs are assessed to Artcrete, Inc.

AFFIRMED IN PART, AMENDED IN PART, AND REVERSED IN PART.

      . The workers' compensation judge (WCJ) awarded a credit in the amount of $120 to Artcrete for monies earned by Mitchell at the Natchitoches Times. Moreover, the WCJ assessed a $2,000 penalty against Artcrete for failing to timely pay for Mitchell's physical therapy treatment. These findings are not in dispute, so they will not be addressed in detail here.

      . At trial, the parties stipulated that the correct compensation rate for Mitchell was $213.50 weekly, or $427 paid bi-weekly, as Mitchell received income from his employer on a bi-weekly basis.


source: Caselaw Access Project

author: PICKETT, Judge.

license: Public Domain

text:
    STATE of Louisiana v. A.S.
    No. 09-555.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 9, 2009.
    Hon. J. Phillip Haney, District Attorney, Walter James Senette, Jr., Assistant District Attorney, New Iberia, LA, for State-Appellee, State of Louisiana.
    Paula Corley Marx, Louisiana Appellate Project, Lafayette, LA, for Defendant-Appellant, A. S.
    Court composed of ELIZABETH A. PICKETT, J. DAVID PAINTER, and JAMES T. GENOVESE, Judges.
   \ .FACTS

PICKETT, Judge.

The defendant had sexual intercourse with T.H., whose date of birth is July 22, 1994, from February 1, 2006, through August 4, 2006. T.H. subsequently became pregnant, and DNA evidence would prove the defendant was the father of her child.

The defendant, A.S., was charged by bill of information filed on December 6, 2006, with molestation of a juvenile, in violation of La. R.S. 14:81.2. In a separate bill of information filed on March 5, 2007, the defendant was charged with forcible rape, in violation of La. R.S. 14:42.1. The defendant was arraigned on the charge of forcible rape on the date the bill of information was filed and entered a plea of not guilty. The defendant was also arraigned on March 7, 2007, and August 23, 2007, and entered pleas of not guilty.

On October 17, 2008, the defendant entered a plea of guilty to forcible rape. The remaining charge was nolle prossed. On February 18, 2009, the court sentenced the defendant to serve thirty years at hard labor, with the first five years of the sentence to be served without benefit of probation and parole. A Motion to Reconsider Sentence was filed on February 27, 2009, and denied on March 4, 2009.

|2A notice of appeal was filed on February 27, 2009, and subsequently granted. The defendant is now before this court asserting one assignment of error. Therein, the defendant contends he was denied assistance of conflict-free counsel.

ERRORS PATENT

In accordance with La.Code Crim.P. art. 920, all appeals are reviewed by this court for errors patent on the face of the record. After reviewing the record, we find there is a potential error patent which the defendant has assigned as an error and which we will discuss below.

ASSIGNMENT OF ERROR

In his only assignment of error, the defendant contends he was denied assistance of conflict-free counsel during the proceedings which culminated in a plea of guilty to forcible rape and a sentence of thirty years at hard labor.

In State v. Cisco, 01-2732, p. 17 (La.12/3/03), 861 So.2d 118, 130, cert. denied, 541 U.S. 1005, 124 S.Ct. 2023, 158 L.Ed.2d 522 (2004) (footnote omitted), the supreme court set forth the defendant’s burden of proof for a conflict of interest claim raised pre-trial:

In a pretrial context, regardless of how the conflict of interest issue arises, the trial court has two options to avoid a conflict of interest: appoint separate counsel or take adequate steps to ascertain whether the risk of a conflict of interest is too remote to warrant separate counsel. [State v.] Tart, 94-0025 at 19-20, [ (La.2/9/96),] 672 So.2d [116] at 125 (relying on Holloway v. Arkansas, 435 U.S. 475, 98 S.Ct. 1173, 55 L.Ed.2d 426 (1978)); State v. Edwards, 430 So.2d 60, 62 (La.1983); State v. Marshall, 414 So.2d 684, 687-88 (La.1982). Failure to do one or the other in a case in which an actual conflict exists requires reversal. Holloway, 435 U.S. at 480, 98 S.Ct. at 1181; State v. Carmouche, 508 So.2d 792, 805 (La.1987) (on reh’g). As we stated in [State v.] Franklin, 400 So.2d [616] at 620 [ (La.1981) ], “If an actual conflict exists, there is no need for a defendant to prove that he was also prejudiced thereby.”

| f.The trial court appointed the Indigent Defender Board (IDB) to represent the defendant on February 23, 2007. On March 5, 2007, the defendant appeared in court with Kay Pitman for a preliminary hearing. At that time, the trial court informed the defendant that Pitman believed she had a conflict of interest in representing him and stated someone else with the IDB would have to represent the defendant. The trial court then asked if the defendant wanted to proceed with the preliminary hearing or wait until he had a new attorney. The defendant indicated he would wait for the new attorney. The defendant was then arraigned on the charge of forcible rape with the assistance of Pitman.

On March 7, 2007, the defendant informed the trial court that he could not afford his own attorney, and the trial court referred the matter to the IDB. Nancy Dunning, counsel with the IDB, stood with the defendant for arraignment.

On May 31, 2007, a motion and order for re-allotment was filed by Pitman. Therein, she alleged she had a conflict. The matter was scheduled for pre-trial conference on June 18, 2007. On that date, Pitman was present and advised the trial court that she had filed a motion for re-allotment.

The defendant appeared for arraignment on August 23, 2007, and was accompanied by Pitman. The state then informed the trial court of the following: “Oh, yeah, Your Honor, there’s a conflict in the matter, I forgot. Ms. Pitman represented the mother involved in this case and she is also named.” Pitman then indicated she would have another attorney with the IDB handle the matter. On November 6, 2007, the defendant appeared in court with Pitman, who was appearing on behalf of the defendant’s attorney Craig Colwart, for a “768 Notice” hearing. The 14matter was postponed. The matter was set for pre-trial conference on December 3, 2007. On that date, Pitman appeared on behalf of the defendant. Pre-trial conference was again scheduled for February 11, 2008. On that date, the defendant was represented by Pitman.

The matter was scheduled for jury trial on February 19, 2008. On that date, Pit-man appeared on behalf of the defendant; however, the matter was re-fixed. Pitman appeared on behalf of the defendant at a pre-trial conference on April 28, 2008, and informed the trial court that a “possible plea is indicated for this matter for May 5, 2008.” The matter was scheduled for jury trial on May 12, 2008. Pitman appeared on behalf of the defendant; however, the matter was re-fixed.

On July 22, 2008, by oral motion of Pitman, the defendant’s pro se motion for bond reduction was withdrawn. Pitman appeared at a pre-trial conference on July 28, 2008. On October 3, 2008, Pitman appeared at a pre-trial conference and informed the trial court that the matter was “trial ready.” On October 17, 2008, the defendant appeared in court with Pitman and Colwart and entered a guilty plea. The trial court asked the defendant if he had been represented by Pitman, and Pit-man informed the trial court that he had also been represented by Colwart. Pit-man later informed the trial court that she had read the sex offender registration requirements to the defendant, and he appeared to understand them. Colwart signed the “Certifícate Outlining Felony Sex Offense Plea Agreement.”

The defendant was represented by Col-wart at sentencing. Lewis H. Pittman, Jr., filed a motion to reconsider sentence. Subsequently, Pitman filed a motion for appeal.

lfiThe defendant asserts the trial court failed to take appropriate steps to inform him of the true nature of his counsel’s conflict and any effects it could have on counsel’s representation and his rights. Because the record does not establish that he waived his right to assistance of conflict-free counsel, the defendant asserts his guilty plea should be vacated and the case remanded to give him the opportunity to plead anew or proceed to trial, if he chooses to plead not guilty, with the advice of conflict-free counsel.

The state asserts the trial court should have held a hearing regarding the nature of the conflict and the possible prejudice it could have on the defendant. Because no hearing was held, the defendant’s appeal should be denied and dismissed, the conviction affirmed, and the defendant should be allowed to file an application for post-conviction relief.

Failure to appoint conflict-free counsel or take adequate steps to ascertain whether a risk of a conflict of interest is too remote to warrant conflict-free counsel requires reversal only when an actual conflict exists. This Court cannot determine, based on the record before us, whether an actual conflict exists in the case at bar. The only specific reference to the basis for Pitman’s conflict was the state’s remark that Pitman “represented the mother involved in this case and she is also named.”

In State in the Interest of D.A., 08-346, p. 22 (La.App. 3 Cir. 8/29/08), 995 So.2d 11, 25, this court discussed the remedy for such situations as follows:

Courts have relegated conflict of counsel issues to post-conviction relief when the record is insufficient to address the issue. See State v. M.M., 00-1296 (La.App. 3 Cir. 8/29/01), 802 So.2d 43, writ denied, 01-3370 (La.10/4/02), 826 So.2d 1121; State v. Griffin, 02-1341 (La.App. 3 Cir. 3/5/03), 839 So.2d 1148; State v. Anderson, 29,282 (La.App. 2 Cir. 6/18/97), 697 So.2d 651. (Griffin and Anderson concerned ineffective assistance of counsel claims based on conflict issues). However, in other cases, courts have felt that the interest of Injustice and judicial economy would be better served by remanding the case for an evidentia-ry hearing so that the issue could be resolved promptly. See State v. Lee, 00-183 (La.App. 1 Cir. 2/16/01), 788 So.2d 452, writ denied, 00-1611 (La.3/30/01), 788 So.2d 442, and State v. Lemon, 29,-587, 29,588 (La.App. 2 Cir. 8/20/97), 698 So.2d 1057. Since this is a juvenile case, and in the interest of justice, this court will remand the case for an evidentiary hearing as opposed to relegating the issue to post-conviction relief proceedings.

In State v. Waters, 00-356 (La.3/12/01), 780 So.2d 1053, the defendant raised the issue of conflict of interest for the first time before the supreme court. The supreme court noted that the defendant was represented at his guilty plea by the same attorney who represented the St. Tammany Parish Sheriffs Office, the police department responsible for arresting him. The supreme court then issued the following ruling:

Under these circumstances, we deem it appropriate to address this claim while the case remains pending on direct review. See State v. Wille, 559 So.2d 1321 (La.1990) (conditionally affirming the defendant’s conviction and sentence and remanding for an evidentiary hearing on whether counsel rendered ineffective assistance of counsel as the result of a conflict of interest). Accordingly, the decision of the court of appeal is reversed, respondent’s conviction and sentence are conditionally affirmed, and this case is remanded to the district court for purposes of conducting an evidentiary hearing on the question of whether respondent’s trial counsel labored under an actual conflict of interest which adversely affected his performance. Cuyler v. Sullivan, 446 U.S. 335, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980). Respondent may appeal from any adverse ruling on the conflict issue.

We find the interests of justice will best be served by remanding this matter to the trial court for the purpose of conducting a hearing to determine whether the defendant’s counsel had an actual conflict of interest that would have prejudiced the defendant.

^Accordingly, we remand this matter to the trial court for the purpose of conducting a hearing to determine whether an actual conflict existed that would have prevented the defendant from having conflict-free counsel.

REMANDED FOR FURTHER PROCEEDINGS.

      . The initials of the victim and the defendant are being used in accordance with La. R.S. 46:1844(W).

      . The record does not indicate what charge the defendant entered a not guilty plea to on March 7, 2007. The minutes of court for August 23, 2007, indicate the defendant entered a plea of not guilty. The charge listed was forcible rape. The transcript of that date indicates the defendant entered a plea of not guilty. The state then stated: "It should just be an aggravated rape. He was Billed on a molestation and a forcible rape and he was later indicted on aggravated rape.”

      . Pitman is referred to in the record as Kay Pitman, Kay Clark, Kay P. Clark, and Kay Pitman Clark. We will refer to her as Kay Pitman (Pitman).


author: GENOVESE, Judge.

text:
    STATE of Louisiana v. Carl Anthony GOBERT.
    Nos. 09-607, 09-608.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 9, 2009.
    James E. Beal, Louisiana Appellate Project, Jonesboro, LA, for Defendant/Appellant, Carl Anthony Gobert.
    Michael Harson, District Attorney-Fifteenth Judicial District, Daniel M. Landry, III, Assistant District Attorney, Lafayette, LA, for Appellee, State of Louisiana.
    Court composed of ELIZABETH A. PICKETT, JAMES T. GENOVESE, and J. DAVID PAINTER, Judges.
   GENOVESE, Judge.

|; Subsequent to habitual offender adjudication, the Defendant, Carl Anthony Go-bert, appeals his habitual offender sentence of twenty years at hard labor. For the following reasons, we affirm his conviction.

PROCEDURAL HISTORY

The Defendant was charged by bill of information in trial court docket number 104183 with second degree battery, in violation of La. R.S. 14:34.1. The Defendant entered a plea of not guilty on December 5, 2006. Pursuant to trial by jury, the Defendant was found guilty as charged and was sentenced to serve five years at hard labor and to pay a fine of $2,000. An oral motion for appeal was subsequently made. Thereafter, the Defendant was charged as an habitual offender in trial court docket number 119176. He denied the charge and was then adjudicated a fourth offender under La. R.S. 15:529.1. His previous sentence was vacated, and he was sentenced, as an habitual offender, to twenty years at hard labor.

A Motion for Appeal, Consolidation with Original Appeal and Designation of Record was filed on December 23, 2008, and subsequently granted. The Defendant is now before this court asserting one assignment of error. He contends that the evidence is insufficient to support his conviction.

FACTS

On July 12, 2004, Vial Thibodeaux, Jr., worked at Wal-Mart. While breaking down merchandise shipments, he was approached by the Defendant and Flora Thomas and asked if the merchandise he was handling was clearance merchandise. Mr. Thibodeaux indicated that it was not, and the two then left.

Mr. Thibodeaux later heard the alarm at the door go off and saw Ms. Thomas |2go through the doors with a buggy filled with merchandise. Mr. Thibodeaux approached Ms. Thomas and asked her for a receipt. Ms. Thomas stated that she had paid for the merchandise in the back of the store and left her receipt there. Ms. Thomas continued walking outside, and Mr. Thibo-deaux grabbed the buggy. Once outside, Mr. Thibodeaux was hit from behind. Mr. Thibodeaux stated that as a result of being struck, he was rendered unconscious for a few minutes, and, when he awoke, he was “full of blood.” Mr. Thibodeaux attempted to return to the store, but was hit from behind again. He was knocked down, stomped, and kicked in the neck, shoulders, and back.

ERRORS PATENT

In accordance with La.Code Crim.P. art. 920, all appeals are reviewed for errors patent on the face of the record. After reviewing the record, we note one error patent concerning the Defendant’s habitual offender proceeding.

The record in this case does not indicate that the Defendant was advised of his right to remain silent, his right to a hearing, and his right to have the State prove its case against him. In State v. Coleman, 96-525, pp. 12-13 (La.App. 3 Cir. 10/7/98), 720 So.2d 381, 387, this court explained in pertinent part:

Although the right to remain silent is not specifically set forth in La. R.S. 15:529.1, in State v. Johnson, 432 So.2d 815 (La.1983), writ granted on other grounds, 438 So.2d 1113 (La.1983); appeal after remand, 457 So.2d 1251 (La.App. 1 Cir.1984), appeal after remand, 471 So.2d 1041 (La.App. 1 Cir.1985), the Louisiana Supreme Court held this statute clearly recognizes the defendant has the right to remain silent, and the statute implicitly provided defendant should be advised by the court of his right to remain silent. The court in Johnson, relying on State v. Martin, 427 So.2d 1182 (La.1983), further stated La. R.S. 15:529.1(D) specifically provides defendant shall be advised of his right to a formal hearing and to demand that the state prove its case.

This court has found that the failure to advise a defendant of the right to remain silent and to have the State prove its case against him is harmless when the defendant is adjudicated a habitual offender after a full hearing, and the defendant does not testify or acknowledge his status as a habitual offender. See State v. Alexander, 05-276, 05-277 (La.App. 8 Cir. 11/2/05), 916 So.2d 303. However, in the present case, defense counsel stipulated as to the Defendant’s identity for the prior convictions.

In State v. Harris, 95-900, pp. 1-2 (La.5/19/95), 654 So.2d 680, the supreme court, reviewing the grant of an application for post-conviction relief, stated:

Admissions of identity at a multiple offender hearing implicate the defendant’s Fifth Amendment privilege against self-incrimination. State v. Johnson, 432 So.2d 815 (La.1983). Nevertheless, multiple offender proceedings “simply should not be equated (at least for purposes of determining the validity of an admission) to trials of guilt or innocence.” State v. Martin, 427 So.2d 1182, 1185 (La.1983). This Court has therefore declined to adopt as a constitutional prerequisite to a valid admission of identity at a multiple offender proceeding a procedure analogous to the Boykin colloquy which must accompany a valid plea of guilty. Id., 427 So.2d at 1185, n. 7. In the absence of any allegation or showing that the admission was involuntary, compare State v. Johnson, supra, the availability of post-conviction relief turns on whether the proceedings as a whole accorded the petitioner fundamental fairness and due process of law. See, Holloway v. Lynaugh, 838 F.2d 792 (5th Cir.), [cert. denied ], 488 U.S. 838, 109 S.Ct. 104, 102 L.Ed.2d 80 (1988); State v. Firmin, 522 So.2d 1181 (La.App. 4th Cir.), [writ denied ], 532 So.2d 759 (La.1988).
In this case, the prosecution introduced and filed into evidence a sworn affidavit from the Department of Corrections to prove that petitioner, Roy Harris, was the same person who was previously convicted of the predicate felonies which led to the multiple bill. Defense counsel made his stipulation in open court and in the presence of the petitioner. A complete review of the transcript reveals that the petitioner was given a fundamentally fair hearing wherein the state proved the prior felony convictions.

|4In State v. Samuel, 08-100 (La.App. 3 Cir. 5/28/08), 984 So.2d 256, writ denied, 08-1419 (La.2/20/09), 1 So.3d 493, writ denied, 08-1487 (La.2/20/09), 1 So.3d 495, this court dealt with an issue similar to that presented in this case. At defendant Samuel’s habitual offender hearing, he testified, acknowledging his prior convictions, without being advised of his right to remain silent. This court found that the defendant’s testimony was voluntary, the defendant was represented by counsel, and a full habitual offender hearing was held. Accordingly, it held that the trial court’s failure to advise the defendant of his right to remain silent was harmless and that the defendant was afforded a fair hearing.

In the present ease, the State presented documentary evidence to prove the existence of the prior convictions. To prove identity, it presented the testimony of Mr. Douglas Edney, with the Louisiana Division of Probation and Parole, who testified that he had supervised the Defendant upon his release for “good time parole supervision” for his prior conviction of distribution of counterfeit cocaine. He identified the Defendant as the person that he had previously supervised. The State then presented evidence of the Defendant’s identity for the prior convictions through an expert in fingerprint analysis and through documentary evidence. According to the record, the Defendant stipulated as to his identity on the three prior convictions and also stipulated as to the fingerprint evidence presented by the State. Subsequent to the presentation of this evidence, the trial court found that the State bore its burden of proof regarding identity, and it ultimately found the Defendant to be a fourth felony offender.

Although the record before this court does not reflect that the Defendant was advised of his rights, there is no indication in the record that the stipulation was | .^involuntary. The Defendant was represented by counsel, and he was adjudicated an habitual offender after a full hearing at which the State presented evidence to prove his habitual offender status. Therefore, we find that the Defendant was afforded a fundamentally fair hearing and that the error was harmless.

ASSIGNMENT OF ERROR

In his only assignment of error, the Defendant contends that the evidence was not sufficient to convict him of the charge of second degree battery or any responsive verdict thereto.

The sole issue before this court is the Defendant’s identity as the perpetrator. The supreme court has explained:

[W]hen the key issue is the defendant’s identity as the perpetrator, rather than whether the crime was committed, the State is required to negate any reasonable probability of misidentification. State v. Weary, 03-3067 (La.4/24/06), 931 So.2d 297[, cert. denied, 549 U.S. 1062, 127 S.Ct. 682, 166 L.Ed.2d 531 (2006) ]; State v. Neal, 00-0674 (La.6/29/01), 796 So.2d 649[, cert. denied, 535 U.S. 940, 122 S.Ct. 1323, 152 L.Ed.2d 231 (2002) ]. Positive identification by only one witness is sufficient to support a conviction. Weary, 03-3067 at p. 18, 931 So.2d at 311; Neal, 00-0674 at p. 11, 796 So.2d at 658; State v. Mussall, 523 So.2d 1305, 1311 (La.1988). It is the factfinder who weighs the respective credibilities of the witnesses, and this court will generally not second-guess those determinations. State v. Bright, 98-0398, p. 22 (La.4/11/00), 776 So.2d 1134, 1147.

State v. Hughes, 05-992, pp. 5-6 (La.11/29/06), 943 So.2d 1047, 1051.

Mr. Thibodeaux testified that the Defendant was in the store with Ms. Thomas; however, he did not see the Defendant hit him and did not identify the Defendant in a photographic line-up. Mr. Thibodeaux testified that he did not tell the police that the Defendant was the person with Ms. Thomas because he did not know the Defendant’s name. Additionally, Mr. Thibo-deaux did not describe the man to the police. However, he made an in-court identification of the Defendant as the man who was with Ms. Thomas.

| r,Ms. Tina Robin, an eyewitness who was in the parking lot of Wal-Mart at the time this incident occurred, testified at trial and was asked if she could identify the man she saw hit Mr. Thibodeaux, and she responded as follows:

I can identify stature and shape, and almost be positively certain that that is him[,] and he is in this courtroom today. By the facial features, I really didn’t get a look at the face because it was happening all so fast and I was hollering “Hey, y’all, stop that. Stop that.” I mean, you know, it was — it just — It happened real fast, and it just — it just wasn’t something that — it wasn’t right.

She further described the man as a black male wearing jean shorts and a blue and white sport shirt who was between five foot four and five foot six inches tall with a stout stature. She testified that the Defendant’s body style was consistent with the man she saw on July 12, 2004.

Ms. Tessie Devillier, another eyewitness who was in the Wal-Mart parking lot at the time of the incident, also testified and described the man who struck Mr. Thibo-deaux as a dark-complected black male with a nice build who had braids in his hair and strong facial features. The man wore jean shorts and a white jersey. In court, Ms. Devillier identified the Defendant as the man who struck Mr. Thibodeaux. She stated that she gave a statement to police, but did not tell them what the man looked like because she was shaken up. Ms. Devil-lier explained that she has anxiety attacks which cause her to panic. Ms. Devillier further testified as follows:

Q Okay. Now, if you had some striking description of this gentleman, being the law-abiding good Samaritan that you are, you probably would have told the police about it at the time?
A Not at the time. If you’re trying to fight off panic. Not-If you don’t have panic attacks, you have no idea what they’re like.
Q Tell us what they’re like, ma’am.
A Well, they’re like they cut off your breath. They make you feel shaky.
ItQ Okay.
A They make you feel jittery.
Q Okay.
A You know, it’s — it’s like you’ve [sic] having a mini heart attack.
Q Okay.
A You know, and something’s going on that you can’t stop.
Q Terrible, right?
A Yeah.
Q Okay. And while you’re feeling panicky and jittery, and losing your breath,—
A I’m not losing my mind and my sight.
Q —all these things, somehow you manage to remember details to such a degree that you can tell this jury, three- and-a-half (3-1/2) years later—
A Yes.
Q —that Carl Gobert was the person who did this?
A Yes.
Q But you didn’t manage to do it on the night—
A I told the police that they could call me if they needed another statement. I was tired. It was at midnight, and I was ready to go home. I left my phone number and told them that if they needed to contact me further, they could.
Q Okay.
A I would even identify him in a line-up.
Q Okay. And you were never called about a line-up?
A (Witness shakes head negatively.)

Detective Robert Vincent testified that Ms. Thomas gave him a statement in | «May of 2005 wherein she stated that the Defendant was involved in the attack on Mr. Thibodeaux. As a result of Ms. Thomas’s statement, Detective Vincent prepared a photographic line-up and presented it to another eyewitness, Ms. Justi-na Iner. Ms. Iner identified the Defendant as the man who struck Mr. Thibodeaux.

Ms. Iner, an employee of the district attorney’s office, testified that the man who struck Mr. Thibodeaux ran down the sidewalk and kept looking back. She then stated, “I don’t know if he’s looking at me or if he’s looking to see where the lady with the shopping cart is, but he’s looking back at me.” Ms. Iner did not describe the man in her statement to police; however, she testified that police did not ask her what the man looked like. She testified that he wore jean shorts and a white jersey.

Ms. Iner testified that she had previously identified the Defendant in a photographic line-up after looking at the photos for five minutes. She also made an in-court identification of the Defendant as the man she saw strike Mr. Thibodeaux.

Ms. Thomas was living with the Defendant at the time of trial. She was asked if she remembered pleading guilty in August of 2005 to an amended charge of unauthorized use of a movable and agreeing to testify about the Defendant’s involvement in the incident at issue. Ms. Thomas testified that she probably went to court under the influence of alcohol and drugs.

Ms. Thomas did not remember giving a statement to Detective Vincent on May 16, 2005. She was questioned about the statement as follows:

Q All right. You gave the statement and this is what it says (Reading): I went to Walmart, took some things, tried to leave from the store. A man stopped me, and my boyfriend hit the man. The man pulled me and Gobert hit him with his fist. The man fell on the floor. Gobert took off running. After he hit the man, I left walking in the front of the store and the police stopped me and flipped me on the ground. Do you remember writing this?
|aA At the time, I don’t remember.
Q This is what happened, isn’t this correct? This is what you told us and we developed Mr. Gobert—
A My — my boyfriend wasn’t Mr. Gobert.
Q Why do you have Mr. Gobert identified in this?
A Did this say — You said that my boyfriend, then Mr. Gobert—
Q It says right here—
A My boyfriend, then it said Mr. Gobert.
Q It says (Reading): And Gobert hit him with his fist. The man fell on the floor. Gobert took off running.
A Mr. Vincent was trying to tell me how to write this here, or something.
Q So you’re telling us that you lied to the court?
AI lied to the court, when?
Q When you came in front of this court and you pled guilty and you agreed that you were going to testify—
A In the front of who?
Q In front of the other judge that you pled guilty to.
A I probably was under the influence of alcohol and drugs.
Q So that’s your excuse today?
A I didn’t — I’m just telling you what I use, I use drugs and I get drunk every day.

Ms. Thomas testified that she was not with the Defendant on the night in question.

The Defendant asserts that Mr. Thibo-deaux, Trooper James Benoit, and Ms. Robin could not identify him. He further asserts that Ms. Devillier’s identification | inwas unreliable because she did not describe the attacker to police at the time of the incident due to a panic attack, and her in-court identification occurred three and one-half years after the incident. Additionally, it took Ms. Iner five minutes to select him from a photographic line-up. The Defendant further asserts that the single eyewitness’s testimony, so long after the incident, leaves room for reasonable doubt as to his identity.

Mr. Thibodeaux testified that the Defendant was the man in Wal-Mart with Ms. Thomas. Ms. Robin testified that the Defendant had the same stature as the man who struck Mr. Thibodeaux. Ms. Devillier made an in-court identification of the Defendant. The Defendant was positively identified by Ms. Iner in a photographic line-up and at trial. Additionally, Ms. Thomas gave a statement to the police indicating that the Defendant struck Mr. Thibodeaux. Therefore, we find that there is sufficient evidence in the record to find that the jury was reasonable in its determination that the Defendant was the person who committed the offense of second degree battery. Accordingly, this assignment of error lacks merit.

DISPOSITION

The Defendant’s habitual offender conviction is affirmed.

AFFIRMED.

      . The record indicates that at the opening of the August 7, 2008 habitual offender proceeding, the prosecutor stated, "I would like to — if you could just arraign him on the bill." Defense counsel indicated he had already filed a response and that they would enter a denial of all charges. From these comments, it appears that the Defendant had not been previously arraigned on the habitual offender bill.

      . On the night of the incident, Trooper Be-noit, then employed by the Lafayette City Police Department, was working security at Wal-Mart.


text:
    David GUIDRY, et al. v. GULF COAST COIL TUBING, et al.
    No. 09-621.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 9, 2009.

      Larry Lane Roy, Alyse Richard, Preis & Roy, Lafayette, LA, for Plaintiffs/Appel-lees, David Guidry and Carl Guidroz.
    Nicholas Dale Doucet, Barkley & Thompson, L.C., Lafayette, LA, for Defendants/Appellants, Gulf Coast Coil Tubing and Nitrogen Services, Inc.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, OSWALD A. DECUIR, and BILLY HOWARD EZELL, Judges.
   THIBODEAUX, Chief Judge.

| jThis case involves a dispute between Defendant-Appellant, Gulf Coast Coil Tubing & Nitrogen Services, Inc. (Gulf Coast), and two officers/shareholders of the company, Plaintiffs/Appellees, David Guidry (Guidry) and Carl Guidroz (Guidroz). The plaintiffs were also directors and employees of the company. Dissatisfied with their performance, Gulf Coast fired Guidry and Guidroz and amended its Articles of Incorporation to provide for the redemption of the stock owned by the two men. The amendments provided that the redemption price would be the “book value” of the stock and then stated that amount as $1.00 per share, which was the purchase price of the stock.

Guidry and Guidroz filed a Petition for Writ of Mandamus, asserting the shareholder’s right to inspect the books of Gulf Coast in order to determine the true book value of the stock. They also asserted an entitlement to attorney fees and costs for the company’s bad faith in denying the plaintiffs’ inspection requests. The trial court found in favor of Guidry and Guidroz and ordered Gulf Coast to present the books for inspection and to pay the litigation costs and attorney fees incurred by the plaintiffs. Gulf Coast appealed the judgment of the trial court. For the reasons set forth fully below, we affirm the judgment of the trial court.

I.

ISSUES

We must decide:

(1) whether the trial court manifestly erred in granting the writ of mandamus and ordering Gulf Coast to present its books for inspection in order to determine the “book value” of the plaintiffs’ shares; and,

(2) whether the trial court erred in finding Gulf Coast in bad faith for denying the plaintiffs’ inspection 12requests and in awarding Guidry and Guidroz attorney fees and costs.

II.

FACTS AND PROCEDURAL HISTORY

On March 29, 2006, Carl Guidroz and David Guidry established and incorporated Gulf Coast Coil Tubing & Nitrogen Services, Inc. Guidroz was the President and Chairman of the Board of Directors of the company, and Guidry was the Secretary-Treasurer of the company and a board member. Both men advanced $58,000.00 each and received 58,000 shares of company stock at $1.00 per share, as did three other board members, Gerry Green, Terry Foreman, and Michael Domingue. Hence, the total number of issued shares was 290,000, and the total amount advanced by the five directors/board members was $290,000.00. Each of the five shareholders owned twenty percent (20%) of the company’s stock.

Guidroz and Guidry were granted full and exclusive authority for borrowing $900,000.00 and $260,000.00 in bank loans on behalf of the corporation and were granted authority to sign without limitations, all promissory notes and security instruments, including mortgages, as they deemed advantageous to the company. Both men mortgaged their homes and signed notes for the leasing of company trucks. Guidroz and Guidry were also employees of Gulf Coast. Guidroz was the manager of the company, while Guidry worked in the shop, assisting and supervising the welding crews.

On February 4, 2008, a special meeting of the board was called for the purpose of amending the company’s Articles of Incorporation to provide: (1) that officers and directors could be removed, with or without cause, by a majority vote of the shareholders; and (2) that the company could redeem at “book value (i.e. price |Rpaid)” the stock of any officer and/or director who was removed for cause. The meeting was also called to address the removal of David Guidry and the mandatory redemption of his stock. All five shareholders were in attendance at the meeting during roll call. However, Guidroz and Guidry left shortly thereafter when the other three shareholders refused to allow a court stenographer into the meeting.

The three remaining shareholders, owning a total sixty percent (60%) of the stock, voted to amend the Articles, to remove Guidry for cause, effective immediately, and to redeem his stock at $1.00 per share. The reasons for removal included motivation issues, poor job performance, lack of commitment and failure to attempt to fulfill duties, leaving crew unattended, and a company vehicle seen at a bar during work hours. All three voted in favor, and Foreman was appointed the new Secretary/Treasurer of Gulf Coast. Also discussed was removal of Guidroz for assuming an advocate position on behalf of Guidry, failure to set up compliance training, failure as manager to monitor and mentor employees, making independent decisions that contradicted previous board decisions regarding payment to a vendor. Guidroz was temporarily suspended with pay until the removal meeting in thirty days, and Do-mingue was appointed the temporary manager of the company.

On February 6, 2008, counsel for the plaintiffs sent correspondence to Gulf Coast indicating that Mr. Guidroz was unhappy with the operation of the company by Green, Foreman, and Domingue, and that his own continued employment was in the best interest of the company. Mr. Guidroz requested minority shareholder protection and, in the absence thereof, offered to sell his stock to Gulf Coast for $150,000.00 and an assumption of all corporate debt that he had guaranteed. Likewise, on the same date, David Guidry offered to sell his stock for $150,000.00.

|4On February 13, 2008, a letter of suspension explaining the stock redemption went out to Guidry. A similar letter, explaining an upcoming meeting to remove Guidroz and redeem his stock, went out to Guidroz.

On February 15, 2008, counsel for Gui-droz and Guidry requested the minutes of all board meetings since November 1, 2007. Gulf Coast responded on February 18 that the minutes would be available to the plaintiffs for review at the company office and that they should schedule an appointment. The letter then contained a request to advise Guidry that, when he came in to review the minutes, he should relinquish his stock certificates, the company truck, and any other company property to be returned.

On March 4, 2008, Gulf Coast held the meeting to remove Carl Guidroz and redeem his stock. Mr. Guidroz was in attendance and opposed all motions. The removal letter to Mr. Guidroz went out the next day.

On March 6, 2008, Gulf Coast sent correspondence to Home Bank regarding a release of guaranty for Guidroz and Guidry on all Gulf Coast loans. The letter indicated the enclosure of the minutes, amendments, and resolutions regarding the removal of the two officers and the intended stock redemption. The letter stated, “[t]hey are still shareholders pending redemption of their stock.” All three remaining directors/shareholders signed the letter. Guidroz and Guidry, along with the three remaining directors of Gulf Coast, signed release documentation with CitiCa-pital on March 18, 2008, but there is no evidence that the release was ever perfected, and the plaintiffs assert that the bank has not, and will not, release them from the debt.

On April 29, 2008, Gulf Coast deposited $116,000.00 in an escrow account in an Arkansas bank with instructions to pay $58,000.00 each to Guidroz and | r,Guidry upon physical receipt of their original stock certificates issued by the company.

On May 2, 2008, stock redemption letters went out to Guidroz and Guidry. On May 20, 2008, counsel for Guidroz and Guidry requested profit and loss statements from Gulf Coast for 2007 and 2008. Gulf Coast responded that the plaintiffs were no longer stockholders and that the request would not be granted. The plaintiffs assert that two additional requests for inspection were also denied.

Guidroz and Guidry filed a Petition for Writ of Mandamus asserting their twenty percent (20%) ownership of the outstanding common stock of Gulf Coast. They asserted their entitlement under La. R.S. 12:103 to be provided with the records and accounts of Gulf Coast, and to inspect financial information and minutes of the board meetings of the corporation. These requests had been repeatedly denied. Guidroz and Guidry also prayed for attorney fees and litigation costs for Gulf Coast’s bad faith refusal to permit them to exercise their inspection rights under La. R.S. 12:172.

The trial court granted the Writ of Mandamus in favor of Guidroz and Guidry and awarded them attorney fees and costs. In its written reasons for judgment, the trial court stated that the defendants’ redemption of the shares was incomplete because there was a dispute as to the valuation of the stock and no evidence of the process used to determine that it had a value of $1.00 per share. The court stated that the defendant corporation could not stipulate that “book value” of the stock was $1.00 per share. Consequently, the court found that Guidroz and Guidry were entitled to inspect the company’s books to determine the value of their shares. The court further found that the defendants were in bad faith in refusing the plaintiffs’ requests to | (¡inspect the company’s records and that Guidroz and Guidry were entitled to attorney fees and costs in the amount of $13,417.72 for Gulf Coast’s bad faith.

III.

LAW AND DISCUSSION Standard of Review

An appellate court may not set aside a trial court’s findings of fact in absence of manifest error or unless it is clearly wrong. Stobart v. State, Through DOTD, 617 So.2d 880 (La.1993); Rosell v. ESCO, 549 So.2d 840 (La.1989). A two tiered test must be applied in order to reverse the findings of the trial court:

a. the appellate court must find from the record that a reasonable factual basis does not exist for the finding of the trial court, and
b. the appellate court must further determine that the record establishes that the finding is clearly wrong (manifestly erroneous).

Mart v. Hill, 505 So.2d 1120 (La.1987).

Even where the appellate court believes its inferences are more reasonable than the fact finders, reasonable determinations and inferences of fact should not be disturbed on appeal. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978). Additionally, a reviewing court must keep in mind that if a trial court’s findings are reasonable based upon the entire record and evidence, an appellate court may not reverse said findings even if it is convinced that had it been sitting as trier of fact it would have weighed that evidence differently. Housley v. Cerise, 579 So.2d 973 (La.1991). The basis for this principle of review is grounded not only upon the better capacity of the trial court to evaluate live witnesses, but also upon the proper allocation of trial and appellate functions between the respective courts.

|7Rights of Inspection

Gulf Coast contends that the trial court manifestly erred in granting the plaintiffs’ Writ of Mandamus under La. R.S. 12:103 and ordering Gulf Coast to present its books for inspection in order to determine the “book value” of the shares held by Guidry and Guidroz.

Louisiana Revised Statutes 12:103, entitled “Corporate records; right of shareholder to inspect,” provides in pertinent part as follows:

D. (l)(a) Upon at least five days’ written notice any shareholder, except a business competitor, who is and has been the holder of record of at least five percent of the outstanding shares of any class of a corporation for at least six months shall have the right to examine, in person or by agent or attorney, at any reasonable time, for any proper and reasonable purpose, any and all of the records and accounts of the corporation and to make extracts therefrom.

La. R.S. 12:103(D)(l)(a) (emphasis added).

On February 15, 2008, counsel for Gui-droz and Guidry made a written request for an inspection of the shareholder meeting minutes from November 2007 forward. Correspondence dated May 20, 2008, requested the profit and loss statements from the beginning of 2007. Under the clear wording of the statute, Guidroz and Guidry, who each owned twenty percent (20%) of the outstanding shares of Gulf Coast from the date of its incorporation in March of 2006, were entitled to inspect the records of the company.

Gulf Coast argues that inspection of the company books under La. R.S. 12:103 is an entitlement reserved to shareholders, and that Guidroz and Guidry were not shareholders when they requested inspections after the May 2008 notices of redemption were mailed to them. Gulf Coast further argues that the trial court was wrong in finding that the amended articles’ provision for stock redemption at “book Lvalue” and at $1.00 per share was contradictory and ambiguous, and in finding that redemption under La. R.S. 12:75(A) was not completed.

We find that the amendments to the company’s Articles of Incorporation were deficient, that Guidroz and Guidry are still shareholders with the rights of shareholders to inspect the records of the corporation in order to determine the value of their stock. More specifically, La. R.S. 12:75 provides as follows:

§ 75. Voting of shareholders and bondholders

A. Except as provided in R.S. 12:136 and R.S. 12:140.12, and except as otherwise provided in the articles, each shareholder of record shall have the right, at every shareholders’ meeting, to one vote for each share standing in his name on the books of the corporation; provided that on and after the date on which written notice of redemption of redeemable shares has been mailed to the holders thereof and a sum sufficient to redeem such shares has been deposited with a bank or trust company with irrevocable instruction and authority to pay the redemption price to the holders thereof upon surrender of certificates therefor, such shares shall not be entitled to vote on any matter and shall not be deemed to be outstanding shares.

La. R.S. 12:75 (emphasis added).

The above statute removes voting rights after a “sum sufficient” has been deposited. In this case, the “sum sufficient” was never determined. This is true because the amendment stated that the shares would be redeemed at “book value,” and the book value of the shares was never determined. Specifically, the amendment indicates that the shares would be redeemed at “book value” and then states two lines later that the “redemption amount shall be the price originally paid or $1.00 per share.” This statement indicates that “book value” is synonymous with $1.00 per |3share, and in that regard, the amendment is ambiguous, self conflicting, and deficient. We find that the stock was to be redeemed at book value, that book value is determined by measuring the assets of the business against its liabilities, and that a review of the corporate books and records is required in order to determine book value.

In Mixon v. Iberia Surgical, L.L.C., 06-878 (La.App. 8 Cir. 4/18/07), 956 So.2d 76, writ denied, 07-1050 (La.8/31/07), 962 So.2d 438, where a former member’s stock was to be purchased at book value, and the company used the terms “book value” and “fair market value” interchangeably, we explained:

We agree the terms “Book Value” and “Fair Market Value” are not synonymous and have generally recognized meanings in accounting in valuation.... Under the terms of the Operating Agreement, the parties agreed to use the “book value” in determining the value of a member’s interest, not fair market value. The book value of a business “has a well-defined meaning, is unambiguous, and is susceptible of only one construction. It is the value as shown by the books of the business, and no other value.” Succession of Jurisich, 224 La. 325, 69 So.2d 361, 362 (1953). Book value is calculated by measuring the assets of the business against its liabilities. Id.

Mixon, 956 So.2d at 82-83.

Where book value and the sum sufficient were never determined in this case, redemption could not be effected. Therefore, shareholder status and the rights of inspection were not removed. Accordingly, the Writ of Mandamus of Carl Guidroz and David Guidry, seeking to inspect the records of Gulf Coast pursuant to La. R.S. 12:103, was properly granted.

| inAttorney Fees

Gulf Coast contends that the trial court erred in awarding attorney fees under La. R.S. 12:172 for a bad faith denial of the plaintiffs’ requests to inspect its books. That statute provides in pertinent part as follows:

D. Any corporation, or any officer or agent thereof, which or who shall in bad faith refuse to permit the exercise of inspection rights as defined in, and limited by, R.S. 12:103, shall be liable to the shareholder or shareholders seeking to exercise such rights to the extent of the costs and expenses of any proceeding necessary to enforce such inspection rights, and for any other damages actually sustained by such shareholder or shareholders.

La. R.S. 12:172.

The trial judge found no evidence in the record that Gulf Coast intended to redeem the stock at book value as provided for in its own amended articles of incorporation. He stated that Gulf Coast had arbitrarily and unilaterally priced the stock at $1.00 per share, the price that the plaintiffs originally paid for the stock over two years prior, with no evidence as to why this was an appropriate amount. The court then stated that, “[t]hese actions, together with defendant’s refusal to allow the plaintiffs to see the corporation’s records to confirm the book value of the stock, demonstrate bad faith.” Gulf Coast argues that it was not in bad faith because it had a good faith belief that Guidroz and Guidry were no longer shareholders at the time they requested inspection of the company’s records. However, as the plaintiffs point out, their attorney first requested an inspection of the minutes on February 15, 2008, well in advance of the deposit of funds in April and the mailing of the redemption letters in May of 2008.

Gulf Coast’s response to this February 2008 request was to agree to provide the records for review. In the next paragraph, however, it requested that Guidry’s stock certificates and corporate vehicle be turned over to the corporation at Inthe time of the review. This never occurred, and all requests for inspection were denied. Guidroz and Guidry analogize Gulf Coast’s conduct to that of the defendant corporation’s in Ales v. Sewell, 00-2018 (La.App. 4 Cir. 10/17/01), 800 So.2d 36. There, the corporation was held to be in bad faith for conditioning the shareholder’s access to the requested documents upon his execution of a confidentiality agreement and for later declaring that the plaintiff was not a shareholder. We agree with this analogy, and we agree with the trial court’s reasoning in the present case.

As indicated in the fact section of this opinion, Gulf Coast stated in correspondence in March of 2008, after the February meeting to amend the articles and redeem the plaintiffs’ stock, and after the plaintiffs February request for inspection, that the plaintiffs were still stockholders until their shares were redeemed. Yet, Gulf Coast argues that it had a good faith belief that the plaintiffs were no longer stockholders. Just because amendments to the articles of incorporation are statutorily allowed for certain purposes and under certain circumstances, Gulf Coast cannot draft self-serving amendments containing arbitrary and unilateral valuations and then plead as a defense its reliance on its own defective provisions. Gulf Coast cited numerous cases for the proposition that the articles of incorporation are contracts, subject to the binding effect of contracts. It should be aware, then, of the principal that, if in doubt or dispute, a contract is interpreted against the one who wrote it. La.Civ.Code art. 2056; Soloco, Inc. v. Dupree, 99-1476 (La.App. 3 Cir. 2/9/00), 758 So.2d 851.

The trial judge concluded that a corporation has the “right to amend its articles for the purpose of reclassifying stock and creating redemption rights in stock.” Guidry and Guidroz assert that the trial court’s statement constitutes a finding 112that the right to amend the articles and reclassify and redeem the stock could be done without the plaintiffs participation and without notations on the certificates, which is not what the court stated. The plaintiffs then assert that this finding, which they have expanded, constitutes an error, because other statutes, not cited by Gulf Coast, provide that the plaintiffs must be a party to, or vote in favor of, any changes regarding the transfer of their shares, and that the transfer restrictions have to be printed on the share certificates themselves.

More specifically, Guidroz and Guidry argue that La. R.S. 12:59 provides that a restriction on the transfer of shares does not affect shares issued before the restriction was adopted, unless the affected shareholders are parties to, or voted in favor of, the restriction agreement. That did not occur in this case. They also argue, pursuant to La. R.S. 12:59, that the restriction is valid only if its existence is noted conspicuously on the front or back of the certificate, which also did not occur in this case. The plaintiffs point out that provisions mandating to whom, and for what price, a shareholder’s stock must be sold or redeemed are “transfer restrictions” subject to the regulatory statute, La. R.S. 12:59. See Succession of Moss, 00-62 (La.App. 3 Cir. 6/21/00), 769 So.2d 614, and Sporl, In re, 03-1084 (La.App. 4 Cir. 10/1/03), 859 So.2d 732. It is clear that stock redemption restrictions are stock transfer restrictions. See Moncrief v. Succession of Armstrong, 05-1584 (La.App. 3 Cir. 9/27/06), 939 So.2d 714. Accordingly, Guidroz and Guidry appear to have a sound argument regarding their required participation and the requirement of notations on the certificates.

However, as Gulf Coast points out, the plaintiffs did not answer the appeal, nor did they file an appeal of their own. Therefore, we are precluded, pursuant to La.Code Civ.P. art. 2133, from entering a ruling on the plaintiffs’ assignments of error.

Louisiana Revised Statutes 12:59 has not been interpreted by the courts, and having already determined that the redemption in this case was deficient because of the language and structure of the amendments in arbitrarily equating “book value” with $1.00 per share, we will preter-mit a full analysis of La. R.S. 12:59. Moreover, the trial court’s comment regarding the corporation’s right to amend its articles and create redemption rights, which we read more narrowly than the plaintiffs do, appeared only in its reasons for judgment. Those written reasons are not binding or appealable; only the judgment itself has judicial effect and is subject to appeal. We also note that the trial court itself stated in those same reasons that its ruling was “narrowly tailored to give plaintiffs the right to inspect the books and records of the corporation” in order to determine the book value of their shares.

The trial court’s judgment in this case is limited to granting the Writ of Mandamus and ordering inspection of the corporation’s books to determine the book 114value of the plaintiffs’ shares, and to granting the plaintiffs’ request for attorney fees and costs for the corporation’s bad faith denial of the shareholder’s right to inspect. Accordingly, it is the judgment issued by the trial court, and the judgment alone, which is on appeal today.

Lastly, Gulf Coast argues that the trial court erred in awarding attorney fees because Guidroz and Guidry did not submit their attorney’s bills during trial. Instead, the bills were attached to the plaintiffs’ brief, which is in the record. Gulf Coast contends that, under Denoux v. Vessel Management Services, Inc., 07-2143 (La.5/21/08), 983 So.2d 84, evidence attached to a brief, while it is “in the record,” cannot be considered on appeal if it is not introduced at trial. We point out that, under the technical and mechanical application of Denoux, there would be no usable exhibits in this case because Gulf Coast did not introduce its twenty-nine exhibits at trial either. Rather, at the end of trial, Gulf Coast referenced to the court that it had exhibits, and it even offered to attach them to its brief; but the court, working somewhat blind at trial because no briefs were properly delivered before trial, merely told Gulf Coast to see its law clerk. Therefore, all briefs and exhibits were viewed by the court after the conclusion of the trial.

In any event, individual bills are not always necessary to support an entitlement to attorney fees. More specifically, the courts award attorney fees under Rule 1.5 of the Rules of Professional Conduct, and the time spent, or actual hours recorded, is only one of eight factors to be considered in fixing fees. The trial court in this case had the record before him and could readily see the work done on the case. We have held that, even where the record does not have bills to support the specific amount of the attorney fees, “when it is evident from the record what services the attorney provided, proof of those services is not necessary.” Vander v. Safeway Ins. Co. of LA., 08-888 p. 9 (La.App. 3 Cir. 2/25/09), 5 So.3d 968, 974. See also, Arnold v. Hancock, 06-632 (La.App. 3 Cir. 2/7/07), 950 So.2d 911, and Capdeville v. Winn-Dixie Store No. 1473, 05-870 (La.App. 3 Cir. 3/1/06), 923 So.2d 900.

IV.

CONCLUSION

Based upon the foregoing, we affirm the trial court’s judgment granting a Writ of Mandamus for inspection of the records of Gulf Coast by Carl Guidroz and David Guidry. We also affirm the trial court’s award of attorney fees and costs in the amount of $13,417.72. All costs of this appeal are assessed against the appellant, Gulf Coast Coil Tubing & Nitrogen Services, Inc.

AFFIRMED.

      . We note that La. R.S. 12:75 removes the voting rights of redeemable shares sought to be redeemed by depositing a sum sufficient in a bank or trust. The existence of La. R.S. 12:59 brings into question whether the shares of Guidroz and Guidry are actually redeemable shares under La. R.S. 12:75. We will briefly address La. 12:59 in another section of this opinion, but our ruling on the right of inspection is limited to the failure of Gulf Coast to determine and deposit the “book value" of the shares in question.

      . After analogizing the Ales case in support of their argument on the bad faith issue, the plaintiffs then asserted as error the trial court's failure to specifically find bad faith on the “additional grounds” that they had just discussed in Ales. We find this redundant and extraneous; and, as indicated below, the plaintiffs did not answer the appeal and, therefore, cannot assert errors.

      . La. R.S. 12:59(B) and (C) provide (emphasis added):
      B. A corporation’s articles of incorporation or bylaws, an agreement among shareholders or an agreement between shareholders and the corporation, may impose restrictions on the transfer or registration of transfer of shares of the corporation. A restriction does not affect shares issued before the restriction was adopted unless the holders of the shares are parties to the restriction agreement or voted in favor of the restriction.

        C. A restriction on the transfer or registration of transfer of shares is valid and enforceable against the holder or a transfer of the holder if the restriction is authorized by this Section and its existence is noted conspicuously on the front or back of the certificate or is contained in the information statement required by R.S. 12:57(H). Unless so noted, a restriction is not enforceable against a person who has no knowledge of the restriction.

      . The tendency is to sustain restrictions on the transfer of corporate stock if the stockholder acquires the stock with the requisite notice of the restriction. A statute may prohibit restrictions on the transfer of stock issued before the corporation adopted the restrictions, unless the holders of the stock are parties to the agreement or voted in favor of the restriction. 18A Am.Jur.2d Corporations § 570.
      “A restriction on transfer of a security imposed by the issuer, even if otherwise lawful, is ineffective against a person without knowledge of the restriction unless: (1) the security is certificated and the restriction is noted conspicuously on the security certificate; or (2) the security is uncertificated and the registered owner has been notified of the restriction.” La. R.S. 10:8-204 (emphasis added).


author: CARLTON, J.,

text:
    Michael W. SCOTT, Appellant, v. STATE of Mississippi, Appellee.
    No. 2008-CP-01017-COA.
    Court of Appeals of Mississippi.
    Jan. 5, 2010.
    Michael W. Scott, pro se.
    Office of The Attorney General, by John R. Henry, Jr., attorney for appellee.

      Before LEE, P.J., CARLTON and MAXWELL, JJ.
   CARLTON, J.,

for the Court.

¶ 1. This case comes before this Court on appeal from the Circuit Court of Jackson County’s denial of Michael W. Scott’s motion for post-conviction relief. Aggrieved by the circuit court’s judgment, Scott appeals, arguing that: the court erred in denying him relief on his motion for post-conviction relief without an evi-dentiary hearing. Finding the record insufficient, we reverse and remand.

FACTS

¶ 2. On August 9, 2005, Scott pled guilty in Jackson County Circuit Court to one count of felony malicious mischief. His adjudication of guilt was deferred, and he was placed on five years of non-adjudicated probation under Mississippi Code Annotated section 99-15-26 (Rev.2007). On February 21, 2007, Scott was arrested by the Moss Point Police Department and charged with DUI Refusal and Leaving the Scene of an Accident. Scott was subsequently charged with violating the conditions of his probation, namely the failure to refrain from committing any offense against the laws of this state.

¶ 3. At a trial held on May 17, 2007, the circuit court revoked Scott’s probation on the grounds that he had failed to abide by the conditions of his probation when he was arrested for DUI Refusal and Leaving the Scene of an Accident. On October 10, 2007, Scott filed a motion for post-conviction relief, asserting that the circuit court improperly had revoked his probation when the judge relied on the fact of the arrest alone as the ground for revocation.

¶ 4. The circuit court denied Scott’s motion on October 19, 2009, finding that: Scott had been sentenced to “non-adjudicated probation”; he had violated the terms of such probation; and his probation was revoked based on that violation. The court further held that Scott failed to show that the revocation or sentence imposed was improper. Scott appeals.

DISCUSSION

¶ 5. This Court will not disturb a circuit court’s decision to deny a motion for post-conviction relief unless the circuit court’s findings are clearly erroneous. Boyd v. State, 926 So.2d 233, 234(¶ 2) (Miss.Ct.App.2005). However, we review questions of law de novo. Id.

¶ 6. Scott argues that the circuit court erred in denying his motion for post-conviction relief without an evidentiary hearing. He further alleges that the blood test violated his Fourth Amendment rights, because he did not consent to the test. Scott also contends that his probation may not be revoked based on the mere fact that he was arrested while on probation.

¶ 7. Additionally, Scott argues that there was no probable cause to justify the police officer’s order that his blood be drawn at the Singing River Hospital. Scott fails to cite to this Court any authority for his position; “thus, the issue is proeedurally barred.” Hoops v. State, 681 So.2d 521, 535 (Miss.1996). Regardless of the procedural bar, the record provided by Scott is insufficient to allow us to examine this issue fully.

¶ 8. In Schmerber v. California, 384 U.S. 757, 770-72, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966) the United States Supreme Court held that ordering that a blood test be performed on a defendant who had been lawfully arrested did not violate his Fourth Amendment rights. In Ashley v. State, 423 So.2d 1311, 1313 (Miss.1982), the Mississippi Supreme Court held that where a defendant had not been lawfully arrested when his blood was drawn for testing, the court must determine whether the police officer had probable cause to detain the defendant and order a blood test after he went to the hospital. Although the facts presented by Scott are murky, the limited facts that can be ascertained appear to mirror those in Ashley — an automobile accident occurred, and the police officer believed that the defendant had been driving under the influence of alcohol. Based on these facts, the supreme court held in Ashley that “there existed probable cause for arrest and also probable cause to search appellant by requiring him to submit to the withdrawal of blood from his body to be tested.” Id. However, Scott fails to provide in the record, among other things, evidence of whether or not he was arrested before the blood test was drawn. He also fails to provide the transcripts from the revocation hearing, which may shed light on whether or not the police officer who ordered the blood test had probable cause to do so. Although Scott designated a copy of the transcript from the revocation hearing to be included in the record, the record before us contains no transcript.

¶ 9. This Court may only act on the record presented to it. Oakwood Homes Corp. v. Randall, 824 So.2d 1292, 1293(¶ 4) (Miss.2002). The reviewing court must “decide each case by the facts shown in the record, not assertions in the brief....” Id. at (¶ 3) (citation omitted). The appellant has “the duty of insuring that the record contains sufficient evidence to support his assignments of error on appeal.” Id. at (¶ 4). Mississippi Rule of Appellate Procedure 10 mandates that “if the appellant intends to urge on appeal that a finding or conclusion is unsupported by the evidence or is contrary to the evidence, the appellant shall include in the record a transcript of all evidence relevant to such finding or conclusion.”

¶ 10. Scott’s argument that the circuit erred in revoking his probation by basing its decision solely on the fact of his arrest also lacks evidentiary support. Scott cites Brown v. State, 864 So.2d 1058, 1060(¶ 9) (Miss.Ct.App.2004), arguing that “[t]he mere arrest of a probationer is not a violation of probation.” In Brown, this Court held that “[w]here the State seeks to revoke one’s probation based upon an allegation of criminal activity, it must show proof of an actual conviction, or that a crime has been committed and that it is more likely than not that the probationer committed the offense.” Id.

¶ 11. On remand of this case, at the post-conviction-relief evidentiary hearing, the burden is “on the prisoner to prove by a preponderance of the evidence that he [is] entitled to reinstatement” of his probation. Moore v. State, 587 So.2d 1193, 1196 (Miss.1991); see Mississippi Code Annotated section 99-39-23(7) (Supp.2009). In the present case, Scott asserts that he was acquitted of the charges of DUI Refusal and Leaving the Scene of an Accident by attaching to his brief two documents that he represents to be orders of acquittal from the Municipal Court of Moss Point, Mississippi. However, these orders do not appear in the official record presented to this Court. “Facts asserted to exist must and ought to be definitely proved and placed before us by a record, certified by law; otherwise, we cannot know them.” Mason v. State, 440 So.2d 318, 319 (Miss.1983). On remand, such evidence asserted by Scott may be considered at the evidentiary hearing. Additionally, we note that the face of the order of revocation of non-adjudicated probation fails to reflect that the circuit court found Scott in violation of a condition of probation; the order only states that he was arrested.

¶ 12. Nevertheless, the Mississippi Supreme Court has held that a conviction is not necessary for revocation of probation; probation may be revoked upon a showing that the defendant “more likely than not” violated the terms of probation. Metcalf v. State, 904 So.2d 1222, 1225(¶ 10) (Miss.Ct.App.2004) (citing Wallace v. State, 607 So.2d 1184, 1189-90 (Miss.1992)). In Alexander v. State, 667 So.2d 1, 3-4 (Miss.1995), John Alexander argued that his parole was unlawfully revoked due to the fact that the county court ultimately dismissed the charges which originally resulted in the justice court conviction. The supreme court found that “[t]he substance of Alexander’s responses during the parole revocation hearing support the actual violation of condition five of his parole agreement”; and, thus, it held that “the complete record of the parole revocation hearing supports the notion that the revocation was proper.” Id. at 4.

¶ 13. On the face of the order of revocation of Scott’s non-adjudicated probation, the order fails to reflect whether the circuit judge considered evidence showing that Scott more likely than not committed the offenses for which he was arrested. Metcalf, 904 So.2d at 1225(¶ 10). The order of revocation of probation appears, on its face, to be based upon Scott’s arrest and his being charged, but not on the underlying facts and circumstances behind the arrest. The revocation order states:

THIS CAUSE coming to be heard in the April term of the Court before the Honorable Robert P. Krebs, Judge, and it appearing that, Michael Wilkins Scott, hereinafter referred to as the aforesaid, was on the 9th day of August A.D., 2005, convicted of the offence [sic] of Felony Malicious Mischief in the Circuit Court of Jackson County, which Court withheld acceptance of his guilty plea and sentenced the aforesaid to non-adjudicated probation for a term [of] [f]ive (5) years, in accordance with the provisions of Mississippi Code 1972, Annotated Section 47-7-33.
It further appearing that the aforesaid has not properly conducted hiself [sic], but has violated the conditions of his probation in a material respect by:
CONDITION (A): Failure to refrain from committing any offense against the laws of this state by being arrested by [the] Moss Point Police Department on 02-21-07 and being charged with DUI Refusal and [Ljeaving the [S]cene of an [A]ccident.
IT, THEREFORE, IS ORDERED AND ADJUDGED that the probation for the aforesaid defendant be revoked. The defendant, Michael Wilkins Scott, is hereby adjudicated guilty and sentenced to [f]ive (5)[y]ears [in the custody of the] MDOC.

¶ 14. Then, in the order denying Scott’s motion for post-conviction relief, the circuit judge states:

There has been no showing by the plaintiff that he is entitled to any of the relief he is seeking. The plaintiff was sentenced to non-adjudicated probation, he violated the terms of that probation and was revoked as a result of the violation. There has been no showing that the revocation or sentence was improper.

However, the order of revocation of probation provided no facts showing a violation of a condition of Scott’s probation. Additionally, the record as a whole also contains no evidence that Scott violated the conditions of his probation. As we noted previously, Scott designated the transcript from the revocation hearing as a part of the record on appeal, but the record contains no such transcript. The clerk’s certificate explains the omission, stating that there was no court reporter transcript. Therefore, we reverse the circuit court’s judgment, and this case is remanded for an evidentiary hearing consistent with the standards set forth in Brown and Metcalf. The record before us is insufficient for this Court to determine if Scott violated the conditions of his non-adjudicated probation.

¶ 15. THE JUDGMENT OF THE CIRCUIT COURT OF JACKSON COUNTY DENYING THE MOTION FOR POST-CONVICTION RELIEF IS REVERSED, AND THIS CASE IS REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. ALL COSTS OF THIS APPEAL ARE ASSESSED TO JACKSON COUNTY.

KING, C.J., LEE, P.J., IRVING, BARNES, ISHEE, ROBERTS AND MAXWELL, JJ., CONCUR. MYERS, P.J., AND GRIFFIS, J., DISSENT WITHOUT SEPARATE WRITTEN OPINION.

      . The circuit court's order of revocation of non-adjudicated probation incorrectly states that Scott was sentenced under section 47-7-33 (Rev.2004). However, the warrant for Scott’s arrest reflects the correct statute, section 99-15-26, for non-adjudicated probation.