text:
    Natalie Jeanne Edmonds LORD v. Brett Kenneth LORD.
    No. 09-457.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 4, 2009.

      Mitchel M. Evans II, DeRidder, Louisiana, for Defendant/Appellant, Brett Kenneth Lord.
    Elvin C. Fontenot, Jr., Leesville, Louisiana, for Plaintiff/Appellee, Natalie Jeanne Edmonds Lord.
    Court composed of MARC T. AMY, BILLY H. EZELL, and JAMES T. GENOVESE, Judges.
   GENOVESE, Judge.

11 Brett Kenneth Lord (Brett) appeals the trial court’s judgment in favor of Natalie Jeanne Edmonds Lord (Natalie) increasing the amount of his child support obligation from $1,350.00 to $1,783.00 per month. For the following reasons, we affirm.

FACTS

Two children were born of the marriage of Brett and Natalie Lord: namely, Braddock Russell, born November 9, 2001; and Jackson Kenneth, born June 11, 2004. In December 2004, the parties entered into a Stipulated Judgment relative to the custody and support of the children which provided that they would have joint custody of the children and which set Brett’s child support obligation at $1,350.00 per month. The parties were divorced in November of 2005.

In February of 2007, Natalie filed a Rule To Increase Child Support. The hearing officer’s recommendation to increase Brett’s child support obligation to $1,783.00 became the judgment of the trial court in May of 2007. Brett appealed this judgment, and this court reversed and remanded the matter for further proceedings. Lord v. Lord, 07-1267 (La.App. 3 Cir. 4/23/08), 981 So.2d 210.

Natalie’s Rule to Increase Child Support came before the hearing officer again on June 24, 2008. The hearing officer again recommended that Brett’s child support obligation be increased to $1,783.00 per month. Brett appealed the hearing officer’s recommendation to the trial court. On August 11, 2008, the trial court found no error in the hearing officer’s recommendation and affirmed the hearing officer’s upward modification of the child support obligation. A judgment consistent therewith was signed on December 30, 2008. It is from this judgment that Brett appeals.

^ASSIGNMENTS OF ERROR

Brett presents the following assignments of error for our review:

1. The [tjrial [cjourt committed an abuse of discretion in failing to deviate from the guidelines as a result of the extraordinary community obligations assumed by [Brett] and memorialized in a Stipulated Judgment.
2. The [t]rial [c]ourt failed to consider that [Natalie’s] change of circumstances should not have been considered as they were already addressed in a Consent Judgment entered into by and between the parties as it pertains to the claim for child care costs; and, as it pertained to increased medial expenses, [Brett] should not have been penalized because of [Natalie’s] unilateral decision to seek medical treatment outside of the service plan provided by [Brett’s] medical insurance provider, Tricare.

LAW AND DISCUSSION

On appeal, Brett argues that the trial court erred in not deviating from the child support guidelines “because of the extraordinary financial obligations assumed by [him].” Additionally, he contends that the trial court “should have given legal efficacy to a Joint Stipulation which addressed the issue of child care costs, such that it should not have been considered as a basis for [Natalie’s] claim of a ‘change in circumstances.’ ” Finally, Brett argues that Natalie’s claim that there had been the requisite “change in circumstances” should not have been considered “based on medical expenses incurred by [Natalie] solely because of her refusal to utilize [Brett’s] medical insurance through Tricare, which would have covered all of [Natalie’s] medical expenses and expenses relative to travel to and from the medical provider.”

Standard of Review

The party seeking modification of a consent judgment [relative to the award of child support] has the burden of proving that there has been a change in circumstances from the time of the award and the time of the motion for modification of the award. Riggs v. LaJaunie, 98-304 (La.App. 3 Cir. 10/7/98), 720 So.2d 114; Stogner v. Stogner, 98-3044 (La.7/7/99), 739 So.2d 762. In arriving at a child support award, the totality of relevant circumstances must be considered. Rosenbloom v. Rosenbloom, 94-1762 (La.App. 4 Cir. 4/26/95) 654 So.2d 877, writ denied, 95-1320 (La.9/1/95), 658 So.2d 1266. The trial court has great discretion in decisions concerning modification of child support decrees, and such decisions will not be disturbed on appeal absent a clear abuse of discretion. La. R.S. 9:311(A); Young v. Young, 95-1154 (La.App. 3 Cir. 4/17/96), 673 So.2d 1154; Rosenbloom, supra.

Hansel v. Hansel, 00-1914, p. 4 (La.App. 4 Cir. 11/21/01), 802 So.2d 875, 879, writ denied, 01-3365 (La.3/8/02), 811 So.2d 880.

Change of Circumstances

Louisiana Revised Statutes 9:311(A)(1) provides that “[a]n award for support shall not be modified unless the party seeking the modification shows a material change in circumstances of one of the parties between the time of the previous award and the time of the rule for modification of the award.” In her Rule to Increase Child Support, Natalie alleged that circumstances had changed such that she was entitled to an increase in the child support awarded for the following reasons:

A. [t]hat the medical cost on the minor child, Braddock Russell Lord[,][has] significantly increased since the Judgment dated December 30, 2004;
B. [t]hat the mover now has to pay day care for the two minor children; [and]
C. [t]hat BRETT KENNETH LORD has had an increase in income since the court[-]ordered support of December 30, 2004.

Clearly, although Brett contends that the increased medical expenses occurred as a result of Natalie’s own volition and, thus, should not have been considered, this is not the only change in circumstance upon which Natalie relied. It is also not the only change in circumstance for which evidence was adduced at trial.

The only witness to testify at the hearing on Natalie’s Rule to Increase Child |4Support was Natalie. It was her testimony that, at the time the parties entered into the consent judgment, she “had not been working[.]” However, at the time the increase in child support was sought, Natalie was employed which necessitated daycare for the two children. Additionally, it was her testimony that she was now having to pay for the medical expenses of one of the children. Further, based upon her testimony, it was established that following the original child support obligation award, Brett, who was in the military, had received a promotion and had been assigned to a new duty location for his employment. It was also Natalie’s testimony that both she and Brett had remarried in the interim. Based upon this unrefuted testimony, we find no merit to Brett’s contention that Natalie failed to establish that a change in circumstances had occurred. Even if we were to accept his contention that the medical expenses should not have been considered, the record contains sufficient evidence that a change of circumstances had occurred. We, therefore, find no merit to this assignment of error.

Deviation from Child Support Guidelines

Brett also argues on appeal that the trial court “should have deviated from the guidelines in awarding [Natalie] child support because of the extraordinary financial obligations assumed by [Brett]” as contemplated by La. R.S. ikSlb.RCXS). We | .¡disagree.

On this issue, we note that “[t]he guidelines are mandatory and provide limits and structure to the trial court’s discretion in setting the amount of support.” Jones v. Jones, 44,201, p. 7 (La.App. 2 Cir. 4/8/09), 6 So.3d 1275, 1279. “A trial court’s factual findings cannot render the guidelines inapplicable, although some factual findings may warrant a deviation from the guidelines.” Hildebrand v. Hildebrand, 626 So.2d 578, 580 (La.App. 3 Cir.1993). Additionally, in a previous matter wherein lfithe propriety of a child support award was appealed, this court stated as follows:

The child support guidelines promulgated in LSA-R.S. 9:315 et seq. apply to the present case. LSA-R.S. 9:315.1 creates a rebuttable presumption that the amount calculated under the guidelines is the proper amount of a child support award. LSA-R.S. 9:315.1(B) allows the trial court to deviate from the guidelines if their application would not be in the best interest of the child or would be inequitable to the parties. A downward deviation requires a showing that application of the guidelines would be inequitable to the parties as such a downward deviation would obviously not be in the best interest of the child. Montgomery v. Waller, 571 So.2d 765, 768 (La.App. 2nd Cir.1990). Section (C) recognizes the court’s discretion to consider various obligations in deviating from the guidelines .... If the court deviates from the guidelines, it must, in accordance with section (B), give oral or written reasons for the deviation on the record.

Miller v. Miller, 610 So.2d 183, 184 (La.App. 3 Cir.1992).

Thus, in the instant matter, there is a rebuttable presumption that the proper amount of the child support award is that which is calculated pursuant to the child support guidelines. Brett, as the parent seeking a deviation from the guidelines, has the burden of proving that an application of the child support guidelines would be inequitable to him because of what he classifies as “extraordinary financial obligations” that he assumed at the time of the community property partition. Following the hearing, the trial court concluded that Brett had not established grounds for a deviation from the child support guidelines.

Brett refers this court to the case of Savoie-Moore v. Moore, 98-235 (La.App. 4 Cir. 9/16/98), 719 So.2d 551, wherein the fourth circuit affirmed a child support award which was in deviation of the child support guidelines based upon the existence of extraordinary community debt. However, the evidence relative to the “extraordinary community debt of the parties” in Savoie-Moore differs significantly 17from that of the case at bar. In Savoie-Moore, the amount of the community debt which was assumed by one of the parties was not only established but, in addition thereto, there was “credible” evidence of an inability of that party “to service the debt and pay child support as provided in the interim agreement.” Id. at 555. The father, in that case, “juggled his obligations and borrowed from his parents” in an effort to fulfill his child support obligations. Id. It was his testimony that “he had considered bankruptcy as an option but that he was trying to avoid doing so.” Id.

In the case at bar, the amount of the community debt which was voluntarily assumed by Brett was established. However, the record indicates that Brett failed to present any evidence at the hearing on Natalie’s Rule to Increase Child Support to establish his ability or inability to fulfill his obligation of paying those debts contemporaneous with fulfilling his child support obligation. Moreover, although Brett asserts that he assumed in excess of $130,000.00 in community debt, we note that this occurred in 2004 when the consent judgment was reached by the parties. Even if this was an “extraordinary community debt of the parties,” the requisite showing of it being an “inequity” to Brett years after these debts were assumed was not established. Considering the totality of the circumstances, including the years which have elapsed, the amount of the community debt which was assumed by Brett, the absence of any showing of his inability to pay, and the absence of proof of any inequity resulting therefrom, we find no abuse of the trial court’s discretion in refusing to deviate from the child support guidelines in this case.

DECREE

Based upon the foregoing, the judgment of the trial court increasing the child support obligation of Brett Kenneth Lord from $1,350.00 to $1783.00 per month is | ^affirmed- Costs of this appeal are assessed to Brett Kenneth Lord.

AFFIRMED.

      . Louisiana Revised Statutes 9:315.1 (emphasis added) provides in pertinent part:
      C. In determining whether to deviate from the guidelines, the court’s considerations may include:
      (1)That the combined adjusted gross income of the parties is not within the amounts shown on the schedule in R.S. 9:315.19.
      (a) If the combined adjusted gross income of the parties is less than the lowest sum shown on the schedule, the court shall determine an amount of child support based on the facts of the case, except that the amount awarded shall not be less than the minimum child support provided in R.S. 9:315.14.
      (b) If the combined adjusted gross income of the parties exceeds the highest sum shown on the schedule, the court shall determine an amount of child support as provided in R.S. 9:315.13(B)(1) and may order the placement of a portion of the amount in a trust in accordance with R.S. 9:315.13.
      (2) The legal obligation of a party to support dependents who are not the subject of the action before the court and who are in that party’s household.
      (3) That in a case involving one or more families, consisting of children none of whom live in the household of the noncustodial or nondomiciliary parent but who have existing child support orders (multiple families), the court may use its discretion in setting the amount of the basic child support obligation, provided it is not below the minimum fixed by R.S. 9:315.14, if the existing child support orders reduce the noncustodial or nondomiciliary parent's income below the lowest income level on the schedule contained in R.S. 9:315.19.

        (4) The extraordinary medical expenses of a party, or extraordinary medical expenses for which a party may be responsible, not otherwise taken into consideration under the guidelines.
      (5) An extraordinary community debt of the parties.
      (6) The need for immediate and temporary support for a child when a full hearing on the issue of support is pending but cannot be timely held. In such cases, the court at the full hearing shall use the provisions of this Part and may redetermine support without the necessity of a change of circumstances being shown.
      (7) The permanent or temporary total disability of a spouse to the extent such disability diminishes his present and future earning capacity, his need to save adequately for uninsurable future medical costs, and other additional costs associated with such disability, such as transportation and mobility costs, medical expenses, and higher insurance premiums.
      (8)Any other consideration which would make application of the guidelines not in the best interest of the child or children or inequitable to the parties.

      . The transcript reveals that the parties agree that the amount of the child support award was correctly determined in accordance with the guidelines assuming that no deviation therefrom was warranted.


source: Caselaw Access Project

author: EZELL, Judge.

license: Public Domain

text:
    Brian BORDELON, Jr. v. AFFORDABLE MOVERS, LLC, et al.
    No. 09-429.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 4, 2009.

      Jerold Edward Knoll, The Knoll Law Firm, Marksville, LA, for Plaintiff/Appel-lee, Brian Bordelon, Jr.
    Rodney Marchive Rabalais, Marksville, LA, for Defendants/Appellants, Affordable Movers, LLC, Brad Boring.
    Court composed of MARC T. AMY, BILLY HOWARD EZELL, and JAMES T. GENOVESE, Judges.
   EZELL, Judge.

|,Brad Boring and his company, Affordable Movers, LLC (Affordable Movers), appeal a trial court judgment awarding Brian Bordelon, Jr. damages for the property damage caused to his mobile home during its move. The Defendants claim that Mr. Bordelon failed to carry his burden of proof as to causation and the extent of such damages. They also allege that Mr. Bordelon should have been assessed a percentage of the fault for failure to mitigate damages.

FACTS

Brian Bordelon bought a mobile home from a private seller. The home was located in Odenberg, and he wanted to move the home to his property in Hamburg. Mr. Bordelon hired Affordable Movers, LLC, owned by Brad Boring, to deactivate the home in Odenberg, move it Hamburg, and reactivate it.

On December 20, 2007, Affordable Movers began the process of deactivating the mobile home. The tongue of the trailer was found in the pasture and bolted onto the chassis. Mr. Boring provided the wheels and axles. On the turn out of the property and onto the road, the trailer got hung up on the road, so a truck had to pull the trailer out.

Prior to reaching Hamburg, it began to rain. The decision was made to park the mobile home and the truck towing it at Maddie’s One Stop, a truck stop in Sim-mesport, until the weather improved. The mobile home was finally moved to Hamburg on December 27. At the time it was raining. When the mobile home was initially placed on the property, the front door was facing the levee in the back, and the back door was facing the road. Mr. Bordelon requested that the front door face the road, so Mr. Boring and his crew then proceeded to turn the mobile home around, utilizing a translift. The lot was muddy from the rain. In the process, the tongue hit|2the ground, causing the mobile home to slide down the blocks and tilt over. At that point, Mr. Boring told Mr. Bordelon he could find someone else to finish setting up and leveling the mobile home.

Mr. Bordelon filed suit against Mr. Boring and Affordable Movers asking for damages to the mobile home as well as general damages. The trial court awarded $2,500.00 as damages for repair of the chassis, $20,000.00 for damages to the mobile home, and $10,000.00 in general damages. Mr. Boring and Affordable appeal the award of damages.

DAMAGES

Mitigation of Damages

Both of Defendants’ arguments center around Mr. Bordelon’s failure to level the mobile home before determining the amount of damage. Therefore, we will first address Defendants’ arguments that the trial court erred in finding that they were required to plead failure to mitigate damages or comparative fault as an affirmative defense. Alternatively, they claim that the pleadings were enlarged to include these defenses.

“The law related to the duty of an injured party to mitigate the damages presumes that further damage has occurred following the tort or breach of contract.” Schroeder v. DiPascal Cabinet Co., Inc., 467 So.2d 1380, 1382 (La.App. 5 Cir.1985).

In the present case, there was no testimony or evidence that there was further damage to the mobile home because it was not leveled. The fact that it was not level made it difficult to determine what problems with the mobile home would remain after it was leveled. Therefore, we find that this is not a mitigation of damages or comparative fault issue. The fact that the mobile home was not level when damages |swere estimated goes to the issue of the amount of damages incurred when the mobile home was dropped.

Amount of Damages

The Defendants argue that Mr. Bordelon failed to prove his damages by a preponderance of the evidence and that the damages awarded were excessive. They argue that the witnesses he called to testify about the amount of damage to the mobile home all testified that they could not determine, without leveling the mobile home, the extent of the damages.

In discussing the issue of damages, the trial court stated:

The issue of damages is made somewhat difficult based on the fact that Bordelon has never secured the services of any mobile home mover and/or person whatsoever to block and level the mobile home. Photographs introduced into evidence clearly indicate that there are serious problems with the mobile home and/or damages in the nature of cracks in the wall; holes in the wall; moved toilet; chassis damage; damage to trim; ceiling damage; wall damage; window damage; disconnected molding; door damage; as well [as] other damages. To substantiate his claim of damages, Bordelon [introduced] the testimony of Paul Juneau, George Mayeaux, and Eric Rusk.
This Court did perform a personal inspection of the mobile home. The home remains in a tilted condition. To enter the home, the Court had to remove cinder blocks holding the rear door shut; climb onto remaining cinder blocks; hold on to each wall; and climb in. Upon entry this Court was amazed at the condition of the home — it looked like new. This home certainly has the potential to be a fíne home. However, this inspection did reveal the damages as shown in the photos and testimony at trial. The question still remains as to whether or not some of these damages would have been repaired upon proper leveling and blocking of the mobile home. This, of course, should have been done by Boring in fulfillment of contractual obligations.

When a person sustains property damage as result of the fault of another, he is entitled to recover damages including cost of restoration that has been or may be reasonably incurred or, at his election, he may recover the difference between the value of the property before and after the damage. Roman Catholic Church of Archdiocese of New Orleans v. Louisiana Gas Serv. Co., 618 So.2d 874 (La.1993); Frisby v. Mugnier, 06-2288 (La.App. 1 Cir. 9/14/07), 971 So.2d 1045, writ denied, 07-2021 (La.12/7/07), 969 So.2d 638. However, if the costs of restoring the property to its original condition is disproportionate to the value of the property or economically wasteful, damages are measured only by the difference between the value of the property before and after the damage, unless there is a personal reason to the owner to restore the property to its original condition or there is reason to believe that the plaintiff will, in fact, make the repairs. Id.

A trial court is given much discretion in the assessment of damages. Williams v. City of Baton Rouge, 98-1981, 98-2024 (La.4/13/99), 731 So.2d 240. Therefore, the appellate court will only disturb the damage award when there has been a clear abuse of discretion. Id.

Three witnesses testified concerning the damage to Mr. Bordelon’s mobile home by way of deposition. George Mayeaux testified concerning the value and condition of the mobile home when he appraised it in December 2007 for the purpose of the loan to purchase the mobile home. He stated that the mobile home was in perfect condition. At that time, he valued the mobile home at $30,000.00.

Paul Juneau, a welder, fabricator, and owner of Fab-Tec, offered testimony concerning the chassis of the mobile home. Mr. Juneau explained that he has repaired four or five chassis and had actually built one chassis. It was his opinion that the chassis was bent and twisted so it would need to be replaced. He further testified that the bent chassis may not interfere with mobility but could affect the leveling of the mobile home. However, the mobile home would have to be leveled to find out. He estimated $5,662.25 to replace the chassis and $2,500.00 to twist the bend out.

| sEric Rusk, a residential contractor who has done some repair work on mobile homes, examined the home to determine the repairs that were necessary. He did agree that it would be hard to tell what kind of repairs would be absolutely necessary until the mobile home was leveled. Upon inspection, Mr. Rusk noted that most of the inside molding was separated from the inside structure, the interior doors could not be opened, there were four or five buckles in the floor, the kitchen grout was cracked, and there were cracks in the ceiling. His estimate for materials and labor to repair these problems, which included leveling the trailer and placing it on blocks, was $20,036.82.

The trial court also performed a personal inspection of the mobile home. The trial court’s observation of the damages to the mobile home were consistent with the testimony and photographs introduced into evidence.

No evidence was offered by the Defendants as to whether any of the observed defects would be corrected once the trailer was level. Given the testimony and evidence, we cannot say the trial court abused its discretion in its award of damages.

For the above reasons, the judgment of the trial court is affirmed. Costs of this appeal are assessed to Affordable Movers, LLC and Brad Boring.

AFFIRMED.


author: GENOVESE, Judge.

text:
    Keith Alan PORTIE and Melissa Portie v. FLAVIN [REALTY] INC., Wendi Hebert, Scott T. Moseley, Christine Moseley and Continental Casualty Company.
    No. 09-436.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 4, 2009.

      Bryan D. Scofield, Scofield & Rivera, LLC, Lafayette, Louisiana, for Defendant/Appellant, Scott Moseley.
    Michael G. Hodgkins, Veron, Bice, Palermo & Wilson LLC, Lake Charles, Louisiana, for Plaintiffs/Appellees, Keith Alan Portie and Melissa Portie.
    Emmett C. Sole, Paul P. Marks, Stock-well, Sievert, Viccellio, Clements & Shad-dock, L.L.P., Lake Charles, Louisiana, for Defendants, Flavin Realty, Inc. and Wendi Hebert.
    Timothy O’Dowd, Attorney at Law, Lake Charles, Louisiana, for Defendant, Continental Casualty Company.
    Court composed of MARC T. AMY, BILLY H. EZELL, and JAMES T. GENOVESE, Judges.
   GENOVESE, Judge.

|, Scott Moseley appeals the trial court’s grant of summary judgment in favor of Keith and Melissa Portie (the Porties), finding that Mr. Moseley had ratified a contract for the purchase of the Portie home and casting him in judgment for $68,200 in stipulated damages and $18,113 in attorney fees pursuant to the contractual provisions contained therein. The Porties have answered the appeal relative to the trial court’s award of attorney fees, seeking additional attorney fees and expenses incurred in opposing Mr. Moseley’s appeal. For the following reasons, we reverse and remand.

FACTS

The Porties owned a home in Sulphur, Louisiana. Scott Moseley was interested in purchasing a home in the Sulphur area. In furtherance thereof, Mr. Moseley retained Wendi Hebert, a real estate agent with Flavin Realty, Inc. (Flavin Realty).

Ms. Hebert showed the Portie home to Mr. Moseley. Mr. Moseley, who wished to remain anonymous, decided to make an offer to purchase the home and, in connection therewith, executed a document expressly authorizing Ms. Hebert to submit a $650,000 offer on his behalf. Following negotiations wherein Mr. Moseley was identified as the “undisclosed buyer,” an agreement for the purchase of the Portie home was finalized in a typed document entitled “Counter Offer.” This Counter Offer, executed by the Porties and Ms. Hebert on behalf of the “undisclosed buyer,” Mr. Moseley, contained a purchase price of $682,000.

When the purchase of the home failed to come to fruition, the Porties filed suit against Mr. Moseley, Christine Pardo, Ms. Hebert, Flavin Realty, and its insurer, | Continental Casualty Company (Continental Casualty), for breach of contract and damages. In response, Mr. Moseley filed a reconventional demand against the Porties, asserting that in the event he was found to be bound by the agreement to purchase their home, “they failed to comply with the terms of this Agreement and the Property Inspection Response Form.... Thus, the Agreement was null and void.” Mr. Moseley also filed a cross-claim against Ms. Hebert, Flavin Realty, and Continental Casualty.

The Porties filed a Motion for Summary Judgment against Mr. Moseley, Flavin Realty, Ms. Hebert, and Continental Casualty. Relevant to their claims against Mr. Moseley, which are the subject of the present appeal, the Porties asserted that Mr. Moseley “did not complete the act of sale as required” and that:

[t]he contract between the parties allows for the seller to choose which remedy he prefers. The sellers choose termination of the contract and damages of ten (10%) per cent of the sales price, as well as costs and fees, including reasonable attorney’s fees incurred as the result of the breach of this agreement.

The trial court granted summary judgment in favor of the Porties and against Mr. Moseley, awarding the Porties $68,200, representing ten percent of the home’s alleged purchase price of $682,000. Their claim for attorney fees was deferred. Additionally, the trial court denied summary judgment as to Ms. Hebert, Flavin Realty, and Continental Casualty.

Mr. Moseley filed a Motion to Reconsider with the trial court, and counsel for the Porties submitted the relevant attorney fee contract and an hourly fee worksheet to the trial court in connection with their claim for attorney fees pursuant to the contract. At the hearing on these two issues, the trial court denied Mr. Moseley’s Motion to Reconsider and awarded the Porties $18,113 in attorney fees. It is from | «¡this judgment that Mr. Moseley appeals. The Porties have filed an Answer to Appeal seeking a modification of the attorney fees awarded by the trial court as well as additional attorney fees and expenses they incurred in opposing Mr. Moseley’s appeal.

ASSIGNMENTS OF ERROR

Mr. Moseley asserts that “the District Court erred as a matter of law in granting Plaintiffs’ Motion for Summary Judgment against Mr. Moseley and denying Mr. Moseley’s Motion to Reconsider.” In their answer to appeal, Mr. and Mrs. Portie assert that “the District Court failed to award the proper amount of attorneys’ fees due and owing under the contract herein.”

LAW AND DISCUSSION

This court recently stated the following with regard to an appeal of the grant of a motion for summary judgment:

A motion for summary judgment is a procedural device used when there is no genuine issue of material fact for all or part of the relief prayed for by a litigant. Duncan v. U.S.A.A. Ins. Co., 2006-363[,] p. 3 (La.11/29/06), 950 So.2d 544, 546, see [La.Code Civ.P.] art. 966. A summary judgment is reviewed on appeal de novo, with the appellate court using the same criteria that govern the trial court’s determination of whether summary judgment is appropriate; i.e. whether there is any genuine issue of material fact, and whether the movant is entitled to judgment as a matter of law. Wright v. Louisiana Power & Light, 2006-1181[,] p. 17 (La.3/9/07), 951 So.2d 1058, 1070; King v. Parish National Bank, 2004-0337[,] p. 7 (La.10/19/04), 885 So.2d 540, 545; Jones v. Estate of Santiago, 2003-1424[,] p. 5 (La.4/14/04), 870 So.2d 1002, 1006.
Samaha v. Rau, 07-1726, pp. 3-4 (La.2/26/08), 977 So.2d 880, 882-83 (footnote omitted).

Benniefiel v. Zurich American Ins. Co., 08-1416, p. 4 (La.App. 3 Cir. 5/6/09), 10 So.3d 381, 384.

|4A1so relevant to the matter sub judiee is the following cautionary language contained within the'jurisprudence relative to summary judgments in certain cases:

In determining whether summary judgment is appropriate, our jurisprudence provides that:
[I]t is not the function of the trial court to determine or inquire into the merits of issues raised, and the trial court may not weigh the conflicting evidence on a material fact. If evidence presented is subject to conflicting interpretations, summary judgment is not proper.
Further,
Summary judgment may not be granted when supporting and opposing documents reveal conflicting versions of the facts which may only be resolved by weighing contradicting testimony and assessing witness credibility.

Johnson v. Gov’t Employees Ins. Co., 05-476, pp. 5-6 (La.App. 3 Cir. 11/2/05), 916 So.2d 451, 454 (quoting Federated Rural Electric Ins. Corp. v. Gulf South Cable Inc., 02-852, pp. 4-5 (La.App. 3 Cir. 12/11/02), 833 So.2d 544, 546-47 (footnotes omitted)). “If in evaluating the evidence, the court considered the merits, made credibility determinations, evaluated testimony, or weighed evidence, summary judgment must be reversed.” Strickland v. Doyle, 05-11, p. 4 (La.App. 3 Cir. 4/6/05), 899 So.2d 849, 852, writ denied, 05-1001 (La.6/3/05), 903 So.2d 466.

Certain facts surrounding this real estate transaction are not disputed by the parties. All parties agree that Ms. Hebert, in negotiating the purchase of the home, was acting on behalf of an “undisclosed buyer[,]” Mr. Moseley. In furtherance of maintaining his anonymity, Mr. Moseley granted Ms. Hebert written authority to negotiate on his behalf and to extend an offer of $650,000. In accordance with the written authority granted to her by Mr. Moseley, Ms. Hebert extended an offer to the |fiPorties with a purchase price of $650,000. That offer was not accepted and negotiations continued. Second, Mr. Moseley, as the undisclosed buyer, did not sign any additional document in the course of negotiations; rather, the counter offer, which was ultimately drafted with a purchase price of $682,000, was executed by the Porties along with Ms. Hebert and Flavin Realty, as agents for the undisclosed buyer.

On appeal, Mr. Moseley contends that he is not bound by the terms of the contract for the purchase of the Portie home for $682,000 on the grounds that his real estate agent, Ms. Hebert, exceeded her authority in negotiating the purchase price for the home. According to Mr. Moseley, she did not have written authority to continue negotiating nor did she have the written authority to bind Mr. Moseley for a purchase price of $682,000. Mr. Moseley asserts that “[fjurther, she had no verbal authority to do so.” Mr. Moseley argues that “there is nothing in writing from [him] authorizing [Ms.] Hebert to submit any counteroffer or to the final sales price of $682,000.00.” He concludes, therefore, that “[b]ased upon that finding alone, [he] is entitled to a dismissal of the case against him, and a summary judgment against him is inappropriate.”

The record reveals that, in granting the Motion for Summary Judgment in favor of the Porties and against Mr. Moseley, the trial court found “that Mr. Moseley intended to conform to the terms of an agreement that he believed he was a party to, up to some point.” The trial court expressly stated that it found “that [Mr. Moseley] had gone beyond the point of no return at that time, and, in fact, ratified the agreement that Ms. Hebert entered into on behalf of Flavin Realty and the Porties.” Clearly, the trial court’s ruling was not based upon a finding that Ms. Hebert possessed the requisite authority to bind Mr. Moseley; rather, it was grounded upon |(ithe theory of ratification. Therefore, more precisely stated, the issue before this court is whether the trial court erred in granting summary judgment in favor of the Porties based upon its factual determination that Mr. Moseley ratified the contract to purchase the Portie home for $682,000.

Louisiana Civil Code Article 1843 (emphasis added) provides as follows:

Ratification is a declaration whereby a person gives his consent to an obligation incurred on his behalf by another without authority.
An express act of ratification must evidence the intention to be bound by the ratified obligation.
Tacit ratification results when a person, with knowledge of an obligation incurred on his behalf by another, accepts the benefit of that obligatiori.

Mr. Moseley argues in his brief to this court that “the District Court ruled that Mr. Moseley ratified a contract that he had never seen.” He calls this court’s attention to his deposition testimony wherein he was questioned about his knowledge of the counter offer. Mr. Moseley denied Ms. Hebert having shown that document to him, and added that “to [his] knowledge, [he] had not seen that document” until the taking of his deposition. We find this testimony of Mr. Moseley pertinent to the trial court’s finding of ratification since La.Civ.Code art. 1843 requires that an individual have “knowledge” for there to be a ratification of an obligation. Additionally, expounding on the knowledge required under La.Civ.Code art. 1843, the jurisprudence states that “[r]atification which is not expressed in writing will not be presumed. The party seeking to enforce the contract must prove that the other party ratified the agreement with full knowledge of all the facts.” Everett v. Foxwood Properties, 584 So.2d 1233, 1236-37 (La.App. 2 Cir.1991) (emphasis added) (citing Rebman v. Reed, 335 So.2d 37 (La.App. 4 Cir.1976), writ denied, 338 So.2d 699 (La.1976); Bamber Contractors, Inc. v. Morrison Eng’g and Contracting Co., Inc., 385 So.2d 327 (La.App. 1 Cir.1980)).

The Porties argue that the actions taken by Mr. Moseley subsequent to the execution of the counter offer support the trial court’s finding of ratification. They argue, in brief, that he “proceeded to immediately exercise his rights under the contract, up to and including making a loan application for the full contract price, getting an appraisal, performing a home inspection, having an attorney, Henry Liles, do title work, and submitting a deposit” in the form of a $5,000 made payable to Flavin Realty.

In considering the particular actions which the Porties contend are sufficient to constitute acts of ratification, we first note that Mr. Moseley expressly denied that certain of these actions were taken by him. Mr. Moseley testified that he had “no idea” who chose the appraiser. Further, he testified that it was suggested to him that he obtain a home inspection. However, it was his testimony that “Ms. Hebert contacted the home inspector. [He] did not.” Mr. Moseley also did not recall having seen the Property Inspection Response Form which listed items that may need repair. When questioned about the title opinion, Mr. Moseley testified that he did not see the title opinion “until after the deal was off.” Additionally, there was a termite inspection done on the home, but, according to his testimony, Mr. Moseley “was not responsible for that.” Although Mr. Moseley does not deny that he had knowledge that certain of the foregoing actions were taken, we find that his testimony places into question whether he had “full knowledge of all the facts.” Everett, 584 So.2d at 1237.

The extent of Mr. Moseley’s knowledge at the time he completed the loan application also remains unclear. In his deposition testimony, Mr. Moseley provided |sa detailed explanation of the loan application process. It was his testimony that he contacted Lee Temple at First National Bank to discuss the purchase of the home because that is where his accounts were. Mr. Moseley explained that he “didn’t have to seek financing” but that he “was directed to seek financing” and “was instructed as part of the process that financing would be necessary.” Mr. Moseley was adamant that he “was told that [he] had to apply for a loan.” According to Mr. Moseley, he went to the bank and completed the loan application because he had been “instructed” that the loan application was required before an appraisal could be performed. Although Mr. Moseley admitted in his deposition testimony that he was aware that the loan application contained a purchase price of $682,000, it was also his testimony that when he questioned the loan officer, Mona Hastings, about the stated price, “she insisted that [he] go ahead with this.”

Similarly, while it is undisputed that Mr. Moseley issued a check in the amount of $5,000 payable to Flavin Realty, his knowledge surrounding the purpose of same is unclear. Mr. Moseley testified that “[he] was told it was earnest money. [He] was told it was standard policy.” However, “[he] was not told what earnest money was for.” Mr. Moseley testified that he “did not want to give that amount of money to Flavin Real Estate because [he] was only making an offer.” It was Mr. Moseley’s understanding that he “would get that money back if there were any problems with the deal.” In his words, he wrote the check “under protest.” Mr. Moseley maintained that “[he] did not understand what the consequences of writing that [$]5,000-dollar check were.”

In sum, Mr. Moseley’s deposition and affidavit submitted in connection with the Motion for Summary Judgment suggest that it was never his intention to purchase the Portie home for $682,000. He also maintained that even after the counter offer | ¡¡was signed by Ms. Hebert, he still did not agree to a $682,000 purchase price. In his mind, “[t]here was — there was no deal.” When Mr. Moseley was questioned about the reason he took actions subsequent to the execution of the counter offer, he testified that he “was instructed by [his] real estate people, who [he] had trust in, the bankers, who [he] had trust in.”

Considering the evidence, we find that the Porties failed to establish that Mr. Moseley had knowledge of the contract that he testified he had not seen until the date of his deposition. To the contrary, his testimony supports the conclusion that he did not have full knowledge of same. Additionally, we do not find that the actions taken by Mr. Moseley subsequent to the execution of the counter offer were done with his having full knowledge of all the facts. Perhaps more importantly, we agree with Mr. Moseley that the oral reasons of the trial court resound in subjectivity. For example, the trial court stated as follows:

But then what this [c]ourt has to determine is how convinced is it — am I — that Mr. Moseley intended to do what the plaintiffs, Mr. and Mrs. Portie, contend was their understanding? And even though this [c]ourt has listened with interest ..., there is still no doubt in my mind that Mr. Moseley intended to conform to the terms of an agreement that he believed he was a party to, up to some point.

These comments reveal that the trial court, faced with conflicting evidence subject to different interpretations, resorted to evaluating the evidence and assessing the credibility of the witnesses; however, it is legally impermissible for a trial court, in ruling on a motion for summary judgment, to delve into matters such as motive and intent.

The deposition of Mona Hastings, Vice President of the Mortgage Lending Department at First Federal, is discussed by the Porties in their brief to this court. The Porties quote Ms. Hastings’ testimony to bolster their argument that Mr. Moseley |10ratified the contract by proceeding with the loan application process. Ironically, however, we agree with the Porties that “Mona Hastings has a completely different story” from that of Mr. Moseley. The testimony of Ms. Hastings serves only to create material and factual discrepancies, particularly as to the knowledge of Mr. Moseley. Moreover, the testimony of Ms. Hastings in no way imports any information on the subjective intentions, motive, and/or state of mind of Mr. Moseley in taking the actions surrounding the loan application.

On the issue of ratification, Mr. Moseley also argues that the second element of ratification, i.e. the acceptance of the benefits of the obligation under La.Civ.Code art. 1843, is lacking in this matter. He argues to this court that he “terminated the loan application process and refused to go forward with the act of sale. Thus, he never accepted its benefits (the home).” In light of our findings set forth above, we pretermit any discussion of whether Mr. Moseley accepted the benefits of the obligation in this case.

The Porties have filed an Answer to Appeal in this matter asserting that the trial court “failed to award the proper amount of attorneys’ fees due and owing under the contract herein.” They also seek attorney fees and expenses they incurred in defending Mr. Moseley’s appeal. On this issue, all parties argue whether the Louisiana Residential Agreement to Buy or Sell constitutes the agreement of the parties in this transaction since it is this document which expressly contains the provision for attorney fees. However, given our reversal of the trial court’s grant of summary judgment in favor of the Porties, we need not address the issue of attorney fees at either the trial court level or the appellate court level.

DECREE

Based upon the foregoing, the judgment of the trial court granting summary | ^judgment in favor of Keith Alan and Melissa Portie against Scott Moseley, casting him in judgment for $68,200 in stipulated damages and $18,113 in attorney fees, is reversed, and this matter is remanded for further proceedings consistent herewith. Costs of this appeal are assessed to Keith Alan Portie and Melissa Portie.

REVERSED AND REMANDED.

      . The Porties asserted the sáme claims against Christine Pardo as those asserted against Mr. Moseley; however, Christine Par-do was subsequently dismissed from the lawsuit.


text:
    STATE of Louisiana v. Alfonzo Jermaine JOHNLOUIS.
    No. 09-235.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 4, 2009.
    Rehearing Denied Dec. 9, 2009.

      J. Phillip Haney, District Attorney, New Iberia, LA, for Appellee, State of Louisiana.
    William Jarred Franklin, Louisiana Appellate Project, Bossier City, LA, for Defendant/Appellant, Alfonzo Jermaine John-louis.
    Jeffrey J. Troselair, Assistant District Attorney Sixteenth Judicial District Court, Franklin, LA, for Appellee, State of Louisiana.
    Alfonzo Jermaine, Angola, LA.
    Court composed of MARC T. AMY, BILLY HOWARD EZELL, and JAMES T. GENOVESE, Judges.
   EZELL, Judge.

| jThe Defendant, Alfonzo Jermaine Johnlouis, was charged by bill of information filed on February 22, 2007, with possession of at least 28 but less than 200 grams of cocaine, in violation of La. R.S. 40:967; possession of marijuana, in violation of La. R.S. 40:966; and transactions involving proceeds from drug offenses, in violation of La. R.S. 40:1041. A plea of not guilty was entered on March 7, 2007. On September 17, 2007, the charge of possession of marijuana was severed. Trial by jury commenced on September 18, 2007, and the jury subsequently found the Defendant guilty on the remaining two counts.

A bill of information charging the Defendant as an habitual offender was filed on September 19, 2007. The Defendant was arraigned on January 30, 2008, and denied the allegations. On February 15, 2008, the Defendant was adjudicated a second felony offender and sentenced to fifty years at hard labor and to pay a fine of $75,000.00 on the charge of possession of at least 28 but less than 200 grams of cocaine. On the charge of transactions involving proceeds from drug offenses, he was sentenced to serve ten years at hard labor and to pay a fine of $20,000.00. The sentences and fines were ordered to run concurrently with each other. The trial court also ordered that the sentences run concurrently with a parole violation in docket number 99-1470.

A “Petition for Appeal” was filed on March 12, 2008, and subsequently granted. The Defendant is now before this court asserting three assignments of error. Therein, the Defendant contends there is insufficient evidence to prove he committed the offenses at issue, the trial court erred in denying his motion to suppress, and the sentences imposed are excessive.

| ¡.FACTS

Police encountered the Defendant and his girlfriend, Semiko Brown, in the parking lot of Wrench Masters, an auto shop that was closed at the time. During a pat down, police found a large sum of cash in the Defendant’s pocket. Police subsequently searched the Defendant’s car and found 60.4 grams of cocaine under the driver’s seat.

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 find there are three errors patent.

The bill of information contains an error in the citation for the charge of transactions involving proceeds from drug offenses. The bill of information provides this charge is a violation of La. R.S. 40:1049, instead of La. R.S. 40:1041. However, the erroneous citation of a statute in the charging instrument is harmless error as long as the error did not mislead the defendant to his prejudice. La.Code Crim.P. art. 464. The Defendant does not allege any prejudice because of the erroneous citation. Accordingly, this court finds that error is harmless.

Next, the trial court imposed an illegal sentence. In addition to the terms of imprisonment, the trial court imposed a fine of $75,000.00 on the enhanced sentence for the conviction of possession of cocaine, and a fine of $20,000.00 on the enhanced sentence for the conviction of transactions involving drug proceeds; the trial court ordered the $20,000.00 fine to run concurrently with the $75,000.00 fine.

In State v. Dickerson, 584 So.2d 1140 (La.1991), the supreme court held that the fine and default provisions of his sentence should be deleted:

[Louisiana Revised Statutes] 15:529.1 requires that the sentencing judge vacate the original sentence and resen-tence the defendant as a multiple offender. In resentencing, the judge must impose a sentence authorized by La.Rev. Stat. 15:529.1. That statute does not authorize the imposition of a fine, but Lonly provides for enhanced sentences relating to the term of imprisonment. The trial judge was therefore without authority to impose a fine on resentenc-ing under La.Rev.Stat. 15:529.1.
Accordingly, the fine and default provisions of defendant’s sentence are deleted.

In light of the Dickerson case and La. R.S. 15:529.1, the court amends the Defendant’s sentences to delete the fine provisions and instructs the trial court to make an entry in the minutes of court to reflect the amendment.

ASSIGNMENT OF ERROR NUMBER ONE

In his first assignment of error, the Defendant contends there was insufficient evidence to prove his guilt beyond a reasonable doubt for the offenses of possession of at least 28 but less than 200 grams of cocaine and financial transactions involving proceeds from drug offenses.

In reviewing the sufficiency of the evidence to support a conviction for negligent homicide, an appellate court in Louisiana is controlled by the standard of review adjudged by the United States Supreme Court in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 660 (1979),

“[T]he appellate court must determine that the evidence, viewed in the light most favorable to the prosecution, was sufficient to convince a rational trier of fact that all of the elements of the crime had been proved beyond a reasonable doubt.” State v. Captville, 448 So.2d 676, 678 (La.1984).

State v. Desoto, 07-1804, p. 7 (La.3/17/09), 6 So.3d 141, 146 (alteration in original).

On December 20, 2006, at approximately 11:30 p.m., police officer Kirk Dunn and a trainee drove past Wrench Masters auto repair shop. Dunn saw two cars in the parking lot and a man crouched down by the tire of one of the cars. Since the business closed at approximately 5:00 p.m., Dunn and the trainee returned to the business and initiated contact with the Defendant and his girlfriend, Semiko Brown. When Dunn and the trainee arrived at Wrench Masters, they were approached by jjlrown. Brown informed Dunn that her car had been repaired, and she and the Defendant were there to pick it up. Her keys were supposed to be on one of the tires.

Dunn verified that Brown owned the car. During that time, the Defendant continued to look for Brown’s keys. When Dunn approached the Defendant, the Defendant corroborated Brown’s story and said he “brought” her to Wrench Masters. Dunn testified that the Defendant was nervous, stuttering, shaking, and would not make eye contact with him.

The driver’s door of the Defendant’s car, which the Defendant and Brown had arrived at Wrench Masters in, was open. Dunn testified that when he passed near the car, he smelled a strong odor of burnt marijuana. On direct examination, Dunn testified the Defendant did not respond when asked about the odor. However, on cross-examination, he testified that the Defendant denied having smoked marijuana.

Dunn testified that because the Defendant was nervous and uncooperative, he conducted a pat down of the Defendant. Dunn detected a large bundle in one of the Defendant’s pocket. Dunn testified that when asked what the object was, the Defendant refused to answer. Thus, Dunn removed what turned out to be a large wad of money from the Defendant’s pocket. Dunn did not know how the Defendant got the money and testified that the Defendant said he was not employed at that time. Dunn admitted he did not include information about the Defendant’s employment status in the police report.

Dunn subsequently searched the Defendant’s car and found two rocks of crack cocaine under the driver’s seat. As a result, the Defendant was arrested for possession of crack cocaine, but Brown was not. Dunn testified that he did not determine who drove the Defendant’s car to Wrench Masters. Additionally, he did not see anyone handle the drugs, and he could not say they did not belong to Brown. | fiSemiko Brown testified that she was the Defendant’s girlfriend. She then admitted that on November 21, 2006, she had been charged with possession with intent to distribute Lortab.

Brown testified that she had the Defendant’s car from approximately 10:00 a.m. until 11:18 p.m. on the date in question. She did not know where the Defendant was from 10:00 a.m. until 3:00 p.m. At approximately 10:30 p.m., the Defendant met her, and she drove to Wrench Masters.

Brown testified that she drove the Defendant’s car to Wrench Masters to pick up her car, the key to which was supposed to be left on a tire. After she was at the shop for approximately two minutes, the police arrived and asked what she was doing. While she spoke to police, the Defendant looked for the key. She then gave an officer her registration and driver’s license. The officer then said he smelled burnt marijuana coming from the Defendant’s vehicle.

Brown testified that she never saw the Defendant handle any illegal narcotics while he was with her. She also acknowledged that Dunn did not ask if the drugs he found under the seat of the Defendant’s car were hers. Brown testified that the Defendant was in the back of the police car when the drugs were found, and the drugs were found the third time the car was searched. She further testified that police said they would let her go if she wrote a statement.

On cross-examination, Brown was questioned about the drugs as follows:

Q. And, during that questioning, you admitted that you didn’t — -that wasn’t your drugs that were in the car, correct?
A. Can I plead the fifth.
Q. During that questioning, at that time, at the time that I questioned you a week or so ago, you said that wasn’t — it wasn’t your drugs, correct? At that time?
IbA. I plead the fifth.
Q. That’s not my question. My question is, at that particular time that I questioned you—
Q. I’m going to ask you again, and I’m going to get the date so that it’s accurate, on August 23, 2007, you testified under oath, correct?
A. Yes.
Q. You raised your right hand and you swore to tell the truth, correct?
A. Yes.
Q. You testified that day?
A. Yes.
Q. You testified that those drugs that were found in that car were not your drugs, correct?
A. It was not ours.
Q. You said, you didn’t know anything about those drugs, correct?
A. I didn’t know.
Q. What’s that?
A. I didn’t know.
Q. You didn’t know anything about it?
A. No.
Q. Wasn’t your drugs, correct?
A. It wasn’t ours.
Q. Those drugs were not for you, correct?
A. It wasn’t ours.
Q. — own or possess those drugs.
A. No.
|7Q. Okay. You didn’t even know they were in there?
A. No.
Q. So you can’t say who they were for?
A. Yes, I can.
Q. You never [sic] nobody, anybody put them in that car, correct?
A. ‘Cause I had the car that day.
Q. That day. You didn’t put [sic] in that car, right?
A. No.
Q. They weren’t for you, correct?
A. It wasn’t ours.
Q. You didn’t even know it was in there, right?
A. Right.
Q. Okay. So there’s no way you can come into court today and say, those drugs were not for Mr. Johnlouis?
A. It wasn’t.
Q. Just because you believe that, because you’re his girlfriend?
A. ‘Cause I know.
Q. How do you know if you didn’t see anybody put them in there?
A. It wasn’t in there.
Q. You don’t want it to be his because you don’t want to see him [sic] jail, correct?
A. No.
Q. You don’t want to see him in jail, correct? Is that a fair statement?
A. It wasn’t his. It wasn’t his.
Q. Yes or no? Yes or no? You do not want to see Mr. Johnlouis in jail, yes or no?
A. No response.
J& • • •
BY THE WITNESS (MS. BROWN):
No.

On redirect examination, she testified that she knew the Defendant did not put the drugs under the car seat.

Brown also testified that the money found in the Defendant’s pocket was not hers and, during the time she knew the Defendant, he did not have a job.

Kevin Ardoin, a forensic chemist employed by the Acadiana Crime Lab, was qualified as an expert in forensic chemistry. Ardoin testified that the material seized from the Defendant’s car was 60.4 grams of crack cocaine.

Possession of at Least 28 but Less Than 200 Grams of Cocaine

To support a conviction for possession of at least 28 but less than 200 grams of cocaine, the State had to prove the Defendant was in possession of cocaine in the quantity stated and that he knowingly possessed it. La. R.S. 40:967(F)(l)(a).

“Possession of narcotic drugs can be established by actual physical possession or by constructive possession.” State v. Hongo, 06-829, p. 4 (La.App. 3 Cir. 12/6/06), 944 So.2d 856, 859 (quoting State v. Davis, 05-543, p. 5 (La.App. 3 Cir. 12/30/05), 918 So.2d 1186, 1190, writ denied, 06-587 (La.10/13/06), 939 So.2d 372).

The supreme court in State v. Toups, 01-1875, pp. 3-4 (La.10/15/02), 833 So.2d 910, 913, summarized the law on constructive possession as follows:
A person may be in constructive possession of a drug even though it is not in his physical custody, if it is subject to his dominion and control. Also, a person may be deemed to be in joint possession of a drug which is in the physical custody of a companion, if he willfully and knowingly shares with the other the right to control it.... Guilty knowledge is an essential ingredient of the crime of unlawful possession of an illegal drug....
State v. Trahan, 425 So.2d 1222 (La.1983) (citing State v. Smith, 257 La. 1109, 245 So.2d 327, 329 (1971)). However, it is well settled that the mere presence in an area where drugs are located or the mere association with one possessing drugs does not constitute constructive possession. State v. Harris, 94-0970 (La.12/8/94), 647 So.2d 337; State v. Bell, 566 So.2d 959 (La.1990).
A determination of whether there is “possession” sufficient to convict depends on the peculiar facts of each case. Factors to be considered in determining whether a defendant exercised dominion and control sufficient to constitute constructive possession include his knowledge that drugs were in the area, his relationship with the person found to be in actual possession, his access to the area where the drugs were found, evidence of recent drug use, and his physical proximity to the drugs. State v. Hughes, 587 So.2d 31, 43 (La.App. 2 Cir.1991), writ denied, 590 So.2d 1197 (La.1992); see also Bujol v. Cain, 713 F.2d 112 (5 Cir.1983), cert. denied, 464 U.S. 1049, 104 S.Ct. 726, 79 L.Ed.2d 187 (1984) (listing above factors as well as a sixth factor: “evidence that the area was frequented by drug users”).

State v. Jacobs, 08-1068, pp. 3-4 (La.App. 3 Cir. 3/4/09), 6 So.3d 315, 318 (alteration in original). “[S]ince knowledge is a state of mind, it need not be proven as fact, but rather may be inferred from the circumstances.” State v. Major, 03-3522, pp. 8-9 (La.12/1/04), 888 So.2d 798, 803 (citation omitted).

In State v. McGraw, 43,778 (La.App. 2 Cir. 12/10/08), 1 So.3d 645, the defendant was convicted of attempted possession of hydrocodone. Police stopped the defendant for making an improper turn at an intersection. The officer took possession of a cup located in the cup holder of the defendant’s vehicle and determined that it smelled like alcohol. The officer arrested the defendant for the improper turn and placed him 110in the patrol car. The officer then searched the driver’s side of the vehicle and found marijuana in the driver’s door pocket and hydrocodone in the middle console. A search of the defendant revealed five hundred dollars in cash. The passenger was arrested because there was an outstanding warrant for his arrest, and he attempted to dispose of a rock of crack cocaine.

The court noted that because the hydro-codone was not in the actual possession of the defendant or the passenger, the State was required to prove the defendant constructively possessed the pill. The court pointed out that the facts showed the pill was in the middle console of a car owned by the defendant. The console was in arm’s reach of the defendant, raising an inference that it was he who had complete control over the pill hidden in his vehicle. Furthermore, the discovery of other drugs in the car and the large sum of cash found on his person lead to an inference of his involvement in illegal drug activity. The evidence showed the defendant had access to the two areas where drugs were found and was in the car with a passenger who was carrying drugs. The court held, based on this evidence, the jury could have reasonably concluded the defendant committed an act tending directly toward the accomplishment of his intent, possession of hydrocodone.

In State v. Ankrum, 573 So.2d 244 (La.App. 1 Cir.1990), the court concluded the evidence was sufficient to support possession of cocaine convictions for all three occupants of a vehicle where cocaine was found. Police received a tip that defendants were in possession of cocaine. The tip described the defendants’ vehicle and the general location of the vehicle. The police spotted the vehicle and started following the car in an unmarked police unit. After the rear-seat passenger looked back and apparently recognized the police unit, the car accelerated and ran a stop lusign. The officer activated his lights and siren, and a chase ensued during which the driver committed several more traffic violations.

The vehicle was ultimately stopped, and all of the occupants became involved in physical altercations with the police. The car was later searched at the police station where a clear plastic bag containing marijuana was found on the front passenger seat, and a clear bag of rock cocaine was found on the back right floorboard under papers and other debris. The court noted that the cocaine was not cleverly concealed or in any way out of reach of each defendant and that the record supported a finding that all three defendants had construe-tive possession of the cocaine. The court affirmed the convictions, concluding that a rational trier of fact could have found beyond a reasonable doubt that each defendant had dominion and control over the cocaine and knowingly possessed it.

The case at bar involves constructive possession, as no one was found in actual possession of the drugs located under the driver’s seat of the Defendant’s car. Evidence regarding who drove the Defendant’s car to Wrench Masters was inconsistent. Brown testified that she drove, and Dunn believed the Defendant drove because the Defendant stated he “brought” Brown to Wrench Masters. Despite this inconsistency, the evidence at trial indicates that 60.4 grams of crack cocaine was found in a car owned by the Defendant. The other occupant of the car, Brown, testified that the drugs did not belong to “us.” However, the Defendant had access to the area where the drugs were found whether he drove the car or was a passenger. Additionally, a large of sum of cash was found in the Defendant’s pocket, and he did not have a job. Furthermore, the Defendant was nervous during his encounter with Dunn. Based on the testimony presented, a jury could conclude that the Defendant constructively possessed the crack cocaine found inside his car and infer his guilty | ^knowledge from these circumstances. Accordingly, the Defendant’s conviction for possession of at least 28 but less than 200 grams of cocaine is affirmed.

Transactions Involving Proceeds from Drug Offenses

The Defendant was also convicted of transactions involving proceeds from drug offenses. Louisiana Revised Statute 40:1041(A) provides that:

It is unlawful for any person knowingly or intentionally to conduct a financial transaction involving proceeds known to be derived from a violation of R.S. 40:966 et seq. when the transaction is designed in whole or in part to conceal or disguise the nature, location, source, ownership, or the control of the proceeds known to be derived from such violation or to avoid a transaction reporting requirement under state or federal law.

The only reported case involving a sufficiency review for this offense is State v. Edwards, 06-850 (La.App. 3 Cir. 6/13/07), 963 So.2d 419. In that case, police received information from confidential informants for approximately ten years that indicated the defendant was transporting drugs from Baton Rouge to New Iberia for street sale. The defendant was the center of an investigation on May 22, 2004, that involved mobile surveillance. The detectives conducting surveillance received information that the defendant had been conducting illegal narcotic activity at an abandoned residence located at 506 Corrine Street. The area was known to have a high rate of drug trafficking.

After the defendant arrived on the scene, two officers witnessed what appeared to be the defendant making narcotics exchanges and watched him store narcotics under a house and in the pipe of a metal clothesline. As officers moved in on the scene, the defendant initially fled but then ran toward an officer, who arrested him.

Approximately three hundred dollars was seized from the defendant’s person, but no drugs or weapons were found on him. One officer retrieved plastic bags from inside the metal pipe and from underneath the house, which were tested and determined to both contain crack cocaine.

11sThe defendant was convicted of conducting a financial transaction involving proceeds known to be derived from a violation of La. R.S. 40:966, et seq. This court reversed the defendant’s conviction, finding the following:

The Defendant argues that no evidence was presented by the State to prove that the money confiscated from his person was the result of drug proceeds. The Defendant adds that no controlled buys were conducted, no drugs were seized from his person, no other person was stopped who possessed drugs, and no confidential informants were present at trial. Further, the Defendant maintains that $305.00 is not an unusually large sum of money and does not automatically prove a sale of narcotics.
Detective Davis testified that other than the two transactions he saw which are described above, he had no proof that the money found on the Defendant was from drug proceeds. He further testified that he did not see the other person put drugs in his pocket, nor did he see the Defendant counting out money.
We were unable to find any jurisprudence which has applied this statute to the evidentiary facts of the case. However, because no money was seen changing hands, and because $305.00 is not an unusually large amount of cash, we find that the evidence is insufficient to find the Defendant guilty of this charge. Therefore, we overturn the Defendant’s conviction for count two, transaction involving proceeds from a drug offense, in violation of La. R.S. 40:1049.

Id. at 426.

In the case at bar, there was no testimony regarding money changing hands and no testimony regarding the amount of cash on the Defendant’s person. Based on the lack of evidence and this court’s ruling in Edwards, we find the evidence was insufficient to convict the Defendant of transactions involving proceeds derived from drug offenses.

luASSIGNMENT OF ERROR NUMBER TWO

In his second assignment of error, the Defendant contends the trial court erred in denying his motion to suppress. The Defendant filed a motion to suppress on March 12, 2007. Therein, he sought to suppress all evidence seized by police.

The testimony at trial did not vary greatly from that at the hearing on the motion to suppress. As a result, we will not repeat all the testimony presented at the hearing, but will set forth additional information provided at that time.

Dunn testified that as Brown initially approached him, the Defendant walked toward his own car. Dunn eventually approached the Defendant’s car in order to speak to him, and the Defendant was seated in the driver’s seat at that time. Upon approaching the Defendant’s car, Dunn detected the odor of burnt marijuana. Dunn told the Defendant he smelled burnt marijuana and asked if anyone had been smoking in the car. The Defendant did not respond and became nervous. In his report, Dunn said the Defendant said no one had been smoking.

Dunn patted down the Defendant and removed a bundle of cash from his pocket because he thought it might be a weapon. The Defendant was then handcuffed for the officer’s safety and placed in the back of Dunn’s patrol car.

Dunn then advised Brown that he smelled burnt marijuana and asked if anyone had been smoking. Brown began crying, which aroused Dunn’s suspicions. Dunn then went back to the Defendant and asked if there was anything inside the car that he needed to know about. The Defendant did not respond. Dunn then searched the Defendant’s car.

During the search, Dunn located two cookies of crack cocaine under the driver’s seat. The search occurred after the trainee agreed that he smelled burnt marijuana. 11sDunn further testified that the officers who later responded to the scene agreed that the car smelled of marijuana.

After Dunn found the crack cocaine, he advised the Defendant of his Miranda rights and that he was under arrest. The Defendant continued to remain silent, and Dunn searched the Defendant’s person. Inside the Defendant’s jacket pockets, Dunn found a “granulated white powdery substance” and a small green leafy substance that he believed was marijuana.

Brown denied crying when Dunn asked if anyone had been smoking marijuana. Brown further testified that the Defendant was handcuffed and placed in back of the patrol car before his vehicle was searched.

Brown testified that the Defendant’s vehicle was running, and Dunn turned it off after the Defendant was placed in the patrol car. Additionally, she was ten feet away from the vehicle at that time.

After hearing the evidence presented by the parties, the trial court denied the motion to suppress and stated the following:

All right. Gentlemen, I think that the Officer had a right to stop and investigate the presence of the automobile that night. It was Eleven-thirty (11:30) in a commercial parking lot. He saw people near the vehicles. I think he had a right to stop and investigate what was going on. Once he did that and the Officer testified that the defendant acted suspiciously, that he had a right to first of all, stopping, second of all, questioning as to his presence there, third of all, to frisking if he had any kind of reasonable suspicion that something may be wrong, which he obviously did. And I think he had a right to frisk him and he found a wad of money. The defendant continued, according to his testimony, acting suspiciously and the smell of marijuana. I heard the testimony that the car was running. I think he had a right to go to the car and find out what was going on inside the car.
For all those reasons I find that the Officer acted appropriately and I will deny the motion to suppress.
_b- • • •
I think he had the right to make the arrest once he found reasonable suspicion and he found the money in his pocket, he smelled the marijuana.

This court discussed the standard applicable to the review of rulings on motions to suppress in State v. Robertson, 06-167, p. 7 (La.App. 3 Cir. 7/16/08), 988 So.2d 294, 300, (quoting State v. Bargeman, 98-617, p. 5 (La.App. 3 Cir. 10/28/98), 721 So.2d 964, 967, writ denied, 99-33 (La.5/28/99), 743 So.2d 658), as follows:

When a trial court rules on a defendant’s motion to suppress, the appellate court must look at the totality of the evidence presented at the hearing on the motion to suppress. The appellate court should not overturn a trial court’s ruling, unless the trial court’s conclusions are not supported by the evidence, or there exists an internal inconsistency in the testimony of the witnesses, or there was a palpable or obvious abuse of discretion. State v. Burkhalter, 428 So.2d 449 (La.1983), and State v. Gaspard, 96-1279 (La.App. 3 Cir. 2/11/98); 709 So.2d 213. The admissibility of evidence seized without a warrant is a question for the trial court. Its conclusions on credibility and the weight of testimony regarding the voluntariness of a consent for admissibility purposes will not be overturned on appeal, unless the conclusions are unsupported by the evidence. State v. Gachot, 609 So.2d 269 (La.App. 3 Cir.1992), writ denied, 617 So.2d 1180 (La.1993), cert. denied, 510 U.S. 980, 114 S.Ct. 478, 126 L.Ed.2d 429 (1993).

In brief to this court, the Defendant asserts that he was arrested when Dunn handcuffed him. In support of this argument, the Defendant cites La.Code Crim.P. art. 201, which defines an arrest as “the taking of one person into custody by another. To constitute an arrest there must be an actual restraint of the person. The restraint may be imposed by force or may result from the submission of the person arrested to the custody of the one arresting him.” The Defendant asserts that a valid arrest must be supported by probable cause that a crime occurred, and evidence seized as the result of an invalid arrest is inadmissible as fruit of the poisonous tree.

117The Defendant argues that should this court find that the arrest was valid because the search exceeded the scope of a search incidental to a lawful arrest. In support of this argument, the Defendant cites Arizona v. Gant, — U.S. -, 129 S.Ct. 1710, 173 L.Ed.2d 485 (2009). In Gant, the Supreme Court concluded that “circumstances unique to the automobile context justify a search incident to arrest when it is reasonable to believe that evidence of the offense of arrest might be found in the vehicle.” Id. at 1714. Gant had been arrested for driving with a suspended license and placed in the back of a patrol car. Officers then searched his vehicle and found cocaine in a jacket in the back seat. Id. In those circumstances, the Court deemed the war-rantless search of Gant’s vehicle inappropriate because the authorities “could not reasonably have believed” that evidence of the offense for which Gant was arrested might be found in his car. Id. at 1719. Gant is inapplicable to the facts of the case at bar, as is evident from the discussion below.

An arrest occurs when the circumstances indicate intent to affect an extended restraint on the liberty of the accused, rather than at the precise time an officer tells an accused he is under arrest. State v. Gibson, 97-1203 (La.App. 5 Cir. 3/25/98), 708 So.2d 1276. A seizure is an arrest, rather than an investigatory stop, when a reasonable person in the defendant’s position would have understood the situation to be a restraint on freedom of movement of the degree that the law associates with a formal arrest. State v. Cojoe, 01-2465 (La.10/25/02), 828 So.2d 1101, citation omitted. However, the use of actual restraint does not, alone, transform a street encounter between the police and a citizen into an arrest because an investigatory stop necessarily “involves an element of force or duress, temporary restraint of a person’s freedom to walk away.” State v. Broussard, 00-3230 (La.5/24/02), 816 So.2d 1284, 1286, per curiam, (citation omitted).
In State v. Cojoe, supra, the Louisiana Supreme Court explained that there is no specific test to determine whether an encounter is an arrest or investigatory stop:
Although a seizure occurs for Fourth Amendment purposes either when an individual has been subjected to II «physical restraint or when he submits to the assertion of official authority, California v. Hodari D., 499 U.S. 621, 626, 111 S.Ct. 1547, 1551, 113 L.Ed.2d 690 (1991), no bright-line rule exists for distinguishing between investigatory stops, characterized by brief restraint imposed on a lesser showing of reasonable suspicion, Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), from arrests based on probable cause.
Id. at 828 So.2d at 1103.

State v. Smith, 06-557, pp. 6-7 (La.App. 5 Cir. 11/28/06), 947 So.2d 95, 99, writ denied, 06-2960 (La.9/14/07), 963 So.2d 993. “An arrest made without probable cause is illegal and the seizure of evidence pursuant to an illegal arrest is also illegal.” State v. Graham, 01-1232, p. 10 (La.App. 5 Cir. 5/29/02), 820 So.2d 1101, 1106, writ denied, 02-1770 (La.12/19/02), 833 So.2d 329.

We need not.determine whether the Defendant was under arrest when he was handcuffed and placed in the patrol car, but will instead discuss the search of the Defendant’s car.

The Fourth Amendment to the United States Constitution protects “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” U.S. Const, amend. IV. Similarly, the Louisiana Constitution provides that “[e]very person shall be secure in his person, property, communications, houses, papers, and effects against unreasonable searches, seizures, or invasions of privacy.” La. Const, art. 1, § 5. A search conducted without a warrant based upon probable cause is per se unreasonable unless the state is able to show that it falls in one of a carefully defined set of exceptions based on the presence of exigent circumstances. Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973); State v. Long, 2003-2592 (La.9/9/04), 884 So.2d 1176, fn. 6, cert. denied, 544 U.S. 977, 125 S.Ct. 1860, 161 L.Ed.2d 728 (2005).
One exception to the warrant requirement is when there is probable cause to search an automobile. The warrantless search of an automobile is not unreasonable if there is probable cause to justify the search, without proving additional exigency, when the automobile is readily mobile because there is an inherent risk of losing evidence. Maryland v. Dyson, 527 U.S. 465, 119 S.Ct. 2013, 144 L.Ed.2d 442 (1999); United States v. Ross, 456 U.S. 798, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982); State v. Long, supra. This exception “rests in part on the premise that if the officers may seize a vehicle and immobilize it for however long it takes to secure a warrant they may conduct an immediate search.” Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970); State v. Kelley, 2005-1905 (La.7/10/06), 934 So.2d 51, cert. denied, 549 U.S. 1065, 127 S.Ct. 691, 166 L.Ed.2d 536 (2006).
Probable cause exists when the facts and circumstances within the arresting officer’s knowledge and of which he has reasonable and trustworthy information are sufficient to justify a man of average caution in the belief that the person to be arrested has committed or is committing an offense. LSA-C.Cr.P. art. 213(3); Beck v. Ohio, 379 U.S. 89, 85 S.Ct. 223, 13 L.Ed.2d 142 (1964); State v. Ceaser, 2002-3021 (La.10/21/03), 859 So.2d 639; State v. Morris, 38,928 (La.App. 2d Cir.9/22/04), 882 So.2d 1221.

State v. Brown, 42,188, 42,189, 42,190, pp. 20-22 (La.App. 2 Cir. 9/26/07), 966 So.2d 727, 746-47, writ denied, 07-2199 (La.4/18/08), 978 So.2d 347 (alteration in original).

In State v. Garcia, 519 So.2d 788 (La.App. 1 Cir.1987), writ denied by State v. Rodriguez, 530 So.2d 85 (La.1988), police stopped the defendant for a traffic violation and detected the odor of marijuana coming from the back of the truck. The court found the odor of marijuana gave the officer probable cause to believe the truck contained contraband, and the movable nature of the truck supplied the exigent circumstances to search the truck without a warrant.

In State v. Paggett, 28,843, p. 4 (La.App. 2 Cir. 12/11/96), 684 So.2d 1072, 1074, the court found the odor of marijuana on the defendant “alone justified a warrantless search of the vehicle under exigent circumstances.”

In State v. Williams, 38,379, pp. 3-4 (La.App. 2 Cir. 11/25/03), 858 So.2d 878, 880-81, writ denied, 03-3535 (La.3/12/04), 869 So.2d 807, the court stated:

| 2qA state trooper’s detection of the odor of marijuana coming from a defendant’s car constitutes justification for a war-rantless search. State v. Cohen, 549 So.2d 884 (La.App. 2d Cir.1989), writ denied, 559 So.2d 135 (La.1990). A police officer who makes a valid traffic stop of the defendant’s vehicle has probable cause to search, based upon the faint odor of marijuana which someone was trying to mask by using air fresheners. State v. Reynaga, 93-1520 (La.App. 3d Cir.10/05/94), 643 So.2d 431. (The court also held that the search was valid based on probable cause, even if consent was not given.) Even a routine registration check, which led to a state trooper’s detection of the odor of marijuana, resulted in sufficient probable cause to make a warrantless search and seizure valid. State v. Arnold, 34,194 (La.App.2d Cir.12/06/00), 779 So.2d 840.

Based on the cases cited herein, we find that Dunn’s detection of the odor of burnt marijuana emanating from the Defendant’s vehicle provided probable cause for the search of his vehicle. Accordingly, even if the Defendant had been illegally detained when he was handcuffed and placed in the patrol car, the search of his vehicle was not conducted pursuant to the illegal detention. Dunn had probable cause to search the Defendant’s car upon smelling the odor of burnt marijuana, which occurred before the Defendant was handcuffed and placed in the patrol car. Therefore, this assignment of error lacks merit.

ASSIGNMENT OF ERROR NUMBER THREE

In his third assignment of error, the Defendant contends the sentences imposed are excessive for this offender and these offenses. The Defendant asserts the trial court indicated he sold drugs for a living and was involved in drug sales at the time of his arrest. The Defendant asserts no evidence was introduced to support the State’s allegation that he sold drugs for a living or that he was doing so on the night of his arrest. Further, the Defendant asserts the trial court failed to adequately consider the length of the sentences imposed amounts to a life sentence.

|2|The Defendant did not object to the sentences at the time they were imposed nor did he file a motion to reconsider sentence.

This court has reviewed claims of exces-siveness where no objection was made and no motion to reconsider sentence was filed. See State v. Thomas, 08-1358 (La.App. 3 Cir. 5/6/09), 18 So.3d 127; State v. Perry, 08-1304 (La.App. 3 Cir. 5/6/09), 9 So.3d 342; State v. H.J.L., 08-823 (La.App. 3 Cir. 12/10/08), 999 So.2d 338. Accordingly, we will review the Defendant’s claim as a bare claim of excessiveness. However, we will not consider the other claims asserted by the Defendant.

This court discussed the standard of review applicable to claims of excessiveness in State v. Bailey, 07-130, p. 3 (La.App. 3 Cir. 10/3/07), 968 So.2d 247, 250 (alteration in original), as follows:

A sentence which falls within the statutory limits may be excessive under certain circumstances. To constitute an excessive sentence, this Court must find that the penalty is so grossly disproportionate to the severity of the crime as to shock our sense of justice or that the sentence makes no reasonable contribution to acceptable penal goals and[,] therefore, is nothing more than the needless imposition of pain and suffering. The trial judge has broad discretion, and a reviewing court may not set sentences aside absent a manifest abuse of discretion.
State v. Guzman, 99-1753, 99-1528, p. 15 (La.5/16/00), 769 So.2d 1158, 1167 (citations omitted).
In State v. Smith, 02-719, p. 4 (La.App. 3 Cir. 2/12/03), 846 So.2d 786, 789, writ denied, 03-562 (La.5/30/03), 845 So.2d 1061 (citations omitted), this court discussed the factors it would consider in order to determine whether a sentence shocks the sense of justice or makes no meaningful contribution to acceptable penal goals:
In deciding whether a sentence is shocking or makes no meaningful contribution to acceptable penal goals, an appellate court may consider several factors including the nature of the offense, the circumstances of the offender, the legislative purpose behind the punishment and a comparison of the sentences imposed for similar crimes. While a comparison of sentences imposed for similar |22crimes may provide some insight, “it is well settled that sentences must be individualized to the particular offender and to the particular offense committed.” Additionally, it is within the purview of the trial court to particularize the sentence because the trial judge “remains in the best position to assess the aggravating and mitigating circumstances presented by each case.”

The Defendant was convicted of possession of more than 28 but less than 200 grams of cocaine and adjudicated a second felony offender. Pursuant to La. R.S. 40:967 and La. R.S. 15:529.1, the offense carries a sentence of imprisonment at hard labor from fifteen to sixty years. The Defendant was sentenced to serve fifty years at hard labor.

Regarding the factors mentioned in Bailey, the parties stipulated that the Defendant had been previously convicted of drug racketeering. The State also informed the trial court that the Defendant was on parole at the time he was arrested for the offenses at issue herein.

The trial court sentenced the Defendant and noted the following:

Mr. Johnlouis, in imposing this sentence I’ve taken into consideration Article 895, the sentencing guidelines. I find that you were engaged as the jury did in illegal conduct, knowingly and intentionally, that you were selling cocaine for a profit and that was I guess your major business enterprise or your major way of making a living. Having heard that you were on parole at the time that you did this it indicates strongly to the Court that any kind of lesser sentence would not be appropriate and certainly any period of probation or suspension of sentence would not succeed, because you had an opportunity to do that and you missed that opportunity. You didn’t take advantage of that opportunity. The Court finds that any lesser sentence would deprecate the seriousness of the offense and that any lesser sentence would not change the way that you have lived your life in the recent past.

In State v. Allen, 93-838 (La.App. 5 Cir. 5/31/94), 638 So.2d 394, writ granted, 94-1754 (La.11/29/94), 646 So.2d 390, writ recalled, 94-1754 (La.3/16/95), 651 So.2d 1343, the court found a sentence of twenty years was not excessive for a second | ^.felony offender convicted for possession of at least 28 but not more than 200 grams of cocaine.

Although, to some, the sentence received by the Defendant in the case at bar appears to be excessive in light of the case cited herein, the court notes the Defendant was on parole at the time he committed the offense at issue. Thus, this court finds the Defendant’s sentence for possession of at least 28 but not more than 200 grams of cocaine is not excessive.

CONCLUSION

The Defendant’s conviction for possession at least 28 but less than 200 grams of cocaine and adjudication as an habitual offender is affirmed. His sentence for that offense is amended to delete the fine provision, and the trial court is instructed to make an entry in the minutes of court to reflect the amendment. The Defendant’s conviction and sentence for transactions involving proceeds derived from drugs transactions is vacated and set aside.

CONVICTION FOR POSSESSION OF COCAINE AFFIRMED; SENTENCE FOR POSSESSION OF COCAINE AMENDED; CONVICTION FOR TRANSACTIONS INVOLVING PROCEEDS FROM DRUG TRANSACTIONS SET ASIDE AND VACATED; REMANDED WITH INSTRUCTIONS.

      . This offense occurred before those at issue in the case at bar.

      . A photograph of the cash was admitted into evidence as State's Exhibit 2 and there was well in excess of $1,000.00 dollars. The actual cash was published to the jury.

      . The supreme court granted certiorari to review the issue of the trial court's requiring the parties to alternate in their exercise of peremptory challenges. However, the defendant did not object to the procedure; therefore, the court recalled the writ of certiorari as improvidently granted.