author: FREDERICKA HOMBERG WICKER, Judge.

text:
    STATE of Louisiana v. Paul FARINAS.
    No. 09-KA-396.
    Court of Appeal of Louisiana, Fifth Circuit.
    Nov. 24, 2009.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Anne Wallis, James W. Adair, Assistant District Attorneys, Gretna, LA, for Plaintiff/Appellee.
    Frederick J. Kroenke, Jr., Attorney at Law, Baton Rouge, LA, for Defendant/Appellant.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., FREDERICKS HOMBERG WICKER, and MARC E. JOHNSON.
   FREDERICKA HOMBERG WICKER, Judge.

|Jn this criminal proceeding the defendant/appellant Paul Farinas appeals his manslaughter guilty plea conviction and his 30-year sentence. He asserts that his guilty plea is constitutionally and statutorily infirm. The state moved to dismiss the appeal as untimely. For the reasons that follow, we deny the motion; affirm the conviction; and, affirm the sentence. Furthermore, we have reviewed the record for errors patent and find none. Motion to Dismiss Appeal

The defendant was charged by indictment with second degree murder, in violation of La. R.S. 14:30.1, allegedly occurring on September 3, 2004. On June 19, 2006, the defendant, who was represented by counsel, pleaded guilty to the | .-¡amended and reduced charge of manslaughter, in violation of La. R.S. 14:31. The defendant’s counsel did not seek an appeal either orally or through written notice. The trial judge granted the pro se defendant an out-of-time appeal on January 14, 2009.

Since the defendant did not file a motion to reconsider his sentence, the delay for taking an appeal elapsed 30 days after the rendition of the judgment. La. C. Cr. P. art. 914(A)(1). Following the 30-day delay, the defendant’s conviction and sentence became final. State v. Counterman, 475 So.2d 336, 338 (La.1985). After the time for appealing has elapsed, the conviction and sentence are no longer subject to review under the ordinary appellate process, unless the defendant obtains the reinstatement of his right to appeal. Id. The appropriate procedural vehicle for a defendant to exercise his right to appeal, after the delay provided by Article 914 has expired, is an application for post-conviction relief. Id., 475 So.2d at 339.

La. C. Cr. P. art. 930.8 provides time limitations for filing an application for post-conviction relief, including applications which seek an out-of-time appeal. Such applications shall not be considered if filed more than two years after the judgment of conviction and sentence has become final under the provisions of Article 914 or 922 (finality of judgment on appeal), unless certain exceptions apply. La. C. Cr. P. art. 930.8(A). In this case, the defendant had turn years or until July 19, 2008 to file an application for post-conviction relief requesting an out-of-time appeal. The state argues that the defendant did not request an out-of-time appeal until August 7, 2008, which was 19 days past the two-year deadline for seeking reinstatement of his appellate rights through an application for post-conviction relief.

The defendant, proceeding pro se, filed a timely post-conviction application on June 23, 2008. He attached a letter to the Clerk of Court in which he stated that |4the correctional facility had to close the law library and he was unable to present all of the information that must accompany his application. He asked the Clerk of Court to file his June 28, 2008 application. He also stated that he would provide additional information at a later date once the law library became available. Thus, he contemplated filing supplementation to his timely-filed application. Seven days later on June 30, 2008, before the defendant filed a supplementation, the trial court ruled on the incomplete post-conviction application by denying it. Among other things, the court ruled that the post-conviction application was improper because the defendant had not exhausted his appellate rights. The defendant sought a timely writ application to this court from that ruling. State ex. rel. Paul Farinas v. State, 08-KH-822 (La.App. 5 Cir. 12/23/08) (unpublished writ disposition). Meanwhile, the defendant filed an application for an out-of-time appeal on August 7, 2008, which the trial judge denied on August 19, 2008 as untimely and improperly filed as a motion. This court granted the writ and concluded that the defendant should have been given an opportunity to amend his later motion or his application for post-conviction relief and to set forth support for his application’s timeliness. The state argues that the defendant’s notice of intent to seek writs was notice only of the June 30, 2008 denial of his application for post-conviction relief and that the notice made no reference to the denial of the out-of-time appeal.

We need not address whether the August denial of the defendant’s motion to seek an out-of-time appeal was properly before this court in the writ application. The August ruling is of no moment because the timeliness of this appeal turns on the effect of the June 30, 2008 ruling regarding the timely-filed application for post-conviction relief. At the time that the trial judge ruled, the defendant had noted, albeit by letter to the Clerk of Court, that he desired to supplement his ^application because he did not have access to a law library at the time. Following the writ disposition, on remand, the trial judge granted an out-of-time appeal.

The trial judge has discretion to allow the defendant to amend and supplement a timely-filed application for post-conviction relief. State ex. rel. Duhon v. Whitley, 92-1740 (La.9/2/94), 642 So.2d 1273. This is so even if the supplementation arises after the expiration of Article 930.8’s time bar. State v. Sampson, 02-909 (La.2/14/03), 841 So.2d 747 (per curiam). Implicit in this court’s ruling on the writ application is the recognition that the trial court has discretion to allow supplementation. In granting the out-of-time appeal, the trial judge concluded that the uniform application for post-conviction relief should be used in obtaining such an appeal. However, in the interest of judicial economy, the trial judge granted the out-of-time appeal. We construe the defendant’s letter as a motion to supplement his post-conviction relief application. Pro se filings are subject to less stringent standards than formal pleadings filed by lawyers. State ex. rel. Egana v. State, 00-2351 (La.9/22/00), 771 So.2d 638 (per curiam) (Citations omitted). A pro se petitioner is not to be denied access to the courts for review of his case on the merits by the overzealous application of form in pleading requirements or hypertechnical interpretations of court rules. Id.

We hold that under these circumstances when the trial court rejects the defendant’s timely-fíled application for post-conviction relief as improper because the defendant has not yet exhausted his appellate rights and does not rule on an outstanding motion to supplement the application based on lack of access to a law library, due process requires that the relator be given his right to amend to seek an out-of-time appeal. See: State v. Williams, 000-1725, p. 8 (La.11/28/01), 800 So.2d 790, 796 (discussing due process right to appeal.). In the writ disposition, this court afforded the defendant that right. Thereafter, the trial court in the | (¡interest of judicial economy properly treated the subsequent August 7, 2008 motion for out-of-time appeal as a timely amendment or supplement to the original timely-fíled application.

Accordingly, we deny the motion to dismiss the appeal.

Facts

The defendant’s conviction was the result of a guilty plea. A factual basis was provided by the state at the time of the plea. The state informed the court that at trial on the merits, it would have shown that on September 3, 2004, the defendant killed his wife, Delinda Farinas, with the specific intent to kill or cause great bodily harm to her, and “pursuant to this plea agreement,” at the time he committed the offense that he was acting in heat of blood and sudden passion. In addition, the following facts were taken from the hearing on the defendant’s motion for a preliminary examination that was completed a few days before his guilty plea.

The preliminary examination was held on three days. At the first setting, the grand jury had not yet returned an indictment. After the grand jury returned an indictment, the matter was allotted to another trial judge who heard the matter anew. The defendant and his defense counsel were present in court for all hearing dates.

The state presented the testimony of Jefferson Parish Sheriff Officer Sergeant Donald Meunier, the lead homicide investigator, and Dr. Karen Ross, the Jefferson Parish Coroner’s office forensic pathologist and assistant coroner who performed the autopsy.

Sergeant Meunier testified that officers had received a 911 call from 434 Bruce Avenue in Terrytown at approximately 6:46 AM that morning. Sergeant Meunier arrived at the scene around 8:30 AM or 8:40 AM. He saw no signs of 17forced entry. The nude victim was lying in a bathtub filled with water with her face, including her mouth and nose, above the water and her head resting on the back of the bathtub. Sergeant Meunier saw a pinkish froth discharge from the victim’s mouth and nose. A curling iron rested on the victim’s pelvic bone. The curling iron and its cord were partially submerged in the water. The cord was attached to an extension cord. By the time Sergeant Meunier arrived, other police officers had unplugged the cord. The victim’s hand was cupped over the curling iron. A cloth curler used to roll hair was clipped to the back of her head. Other curlers were nearby. A mirror was propped against the toilet and angled toward the bathtub.

At the time the incident was reported, there were five children in the home. Sergeant Meunier learned that prior to his arrival, the defendant was there briefly. Later, Sergeant Meunier took video statements from the victim’s eleven-year-old son and eight-year-old daughter — the defendant’s stepchildren. The son stated that the defendant was aware that the son’s mother intended to leave the defendant. The daughter said that she awakened during the night preceding the death when she heard yelling and the victim and the defendant arguing. She also heard her mother pleading with the defendant to put down the gun. She stated she observed both of them in the hallway and at that time the defendant had a handgun.

Sergeant Meunier said that while he was at the scene, Robert Johnson informed the police that he was the victim’s boyfriend. Mr. Johnson suspected the defendant of killing the victim. He told the officers that the victim intended to separate and ultimately divorce the defendant. He stated that the victim had either secured or was in the process of securing an apartment on the Westbank. The officers went to that apartment complex and confirmed that the victim had filled |sout an application two days before her death, requesting occupancy as soon as possible.

Sergeant Meunier said that six weeks after the death, the defendant gave a statement after being advised of his Miranda rights and waiving them. The defendant said that he left the residence at 1:30 AM on that date to go to work. He stated that his wife was pouring a second bath when he left.

Sergeant Meunier stated that he obtained a statement from a neighbor who saw the defendant later that morning. The neighbor’s bedroom is located at the front of her residence and her window looks out onto the street. She told the officers that on the morning of the death at approximately 5:30 AM she was alerted to the revving of an engine on a large truck. She saw the defendant seated in the truck for a matter of minutes. The windows in her room rattled and she considered going outside and approaching the defendant but he pulled off before she could do so.

Dr. Karen Ross testified that the victim died as a result of a homicide. She attributed the cause of death to components of drowning and strangulation but she could not rule out electrocution. She stated she definitely had evidence for drowning and strangulation. In her opinion, the victim died as a result of homicidal violence.

The Guilty Plea

On June 19, 2006, the trial judge entered into a guilty plea colloquy with the defendant. Also, the defendant, his counsel, and the trial judge executed a contemporaneous written acknowledgment and waiver of the defendant’s constitutional rights.

At the outset, defense counsel informed the court that the defendant would withdraw his former plea of not guilty to the charge of second degree murder and 19enter a plea of guilty to the charge of manslaughter. The trial judge then questioned the defendant under oath.

The defendant stated that he was 35 years of age at the time of the hearing. He could read and write the English language and had attended school until the 11th grade. He was not under the influence of drugs or alcohol. The defendant testified that he had read the written acknowledgment and waiver form and it had been explained to him by his attorney. The defendant said that he understood that he was withdrawing his former plea of not guilty to second degree murder and entering a plea of guilty to manslaughter. He understood that the maximum sentence he could receive was 40 years at hard labor.

The trial judge asked the defendant if he understood that he had the right to a trial by jury, the right to cross-examine the witnesses against him, the right to call witnesses on his behalf, the privilege against self-incrimination, the right to testify if he so chose, and, the right to maintain a plea of not guilty.

The defendant stated: “Yes, sir.” He also stated that he understood that if he pleaded guilty he was waiving or giving up those rights.

The defendant also acknowledged that he understood that if he were convicted of a subsequent offense, the state may seek an enhanced penalty pursuant to the habitual offender law.

Next, the prosecutor presented a brief recitation of the facts of its case against the defendant. The prosecutor, as noted above, stated that if the case went to trial, the state would show that the defendant had specific intent to kill or cause great bodily harm to his wife, the victim, and that pursuant to the plea agreement the defendant was acting out of heat of passion or blood. The defendant acknowledged that he understood the nature of the charge to which he was 11(lpleading guilty. He acknowledged that he was pleading guilty because he was guilty.

The defendant agreed that he had been advised by his attorney of the delays for seeking post-conviction relief, and that in the event the court accepted his plea, he would be sentenced to 30 years at hard labor. The defendant stated that he wished to plead guilty in light of the court’s explanation.

The trial judge accepted the defendant’s plea as having been knowingly, intelligently, freely, and voluntarily made. He sentenced the defendant to a negotiated 30-year sentence.

The contemporaneous acknowledgment and waiver form provided the following:

Among other things, the form contained a series of questions and lines that provided for “yes” or “no” answers. Instead of responding appropriately with such answers, the defendant initialed the designated lines, therefore indicating that he had read those provisions. The pertinent provisions that were initialed by the defendant stated:

You have a right to a trial by jury, which jury may either find you guilty as charged, guilty of a lesser crime, or not guilty. You have the right to retain an attorney of your choice to defend you at every stage of the proceeding. If you cannot afford an attorney, one will be appointed for you, which will cost nothing. By entering a plea of guilty, you are waiving or giving up these rights. Do you understand that?
At any trial, you have the right to confront your accusers and to compel testimony on your behalf from your witnesses. By entering this plea of guilty, you are waiving or giving up these rights. Do you understand that?
At any trial, you have a privilege against self-incrimination, in other words the right to remain silent and that silence cannot be held against you? Do you understand that?
If you were to go on trial, and in the event of a conviction, that is, if the jury finds you guilty, you would have the right to appeal. Again, |nin the event of an appeal, if you could not afford an attorney, one would be appointed for you, which would not cost you anything. By entering a plea of guilty, you are waiving or giving up these rights. Do you understand that?
If you plead guilty, and this court accepts your plea, you do not have the right to assert any allegation of defects, such as
(a) an illegal arrest;
(b) an illegal search and seizure;
(c) an illegal confession;
(d) an illegal line-up; and
(e) lack of sufficient evidence to convict you.

The last page of the form provided signature lines for the defendant, defense counsel and the trial judge. Defense counsel signed the following statement that the defendant initialed:

I, as attorney for the defendant, was present during the recitation of the foregoing colloquy between the defendant and the trial judge at the time of defendant’s plea of guilty.
I also, have informed the defendant of his or her rights, particularly the nature of the crime to which he or she is pleading guilty, the maximum sentence the court could impose under the law, and the fact that the defendant, by entering this plea of guilty is waiving his or her right to a trial by jury or by court alone, his or her right to confront his or her accusers, his or her right against self-incrimination, and lastly that his or her only appeal is for review of jurisdictional defects; and I am entirely satisfied that the defendant knowingly, willingly, intelligently and voluntarily has entered this plea of guilty knowing the consequences.

The defendant signed the portion of the form that followed. That portion stated (emphasis in original):

I, as the defendant in this case, acknowledge:(l) that the foregoing has been read to me; (2) that my attorney and the trial judge have explained the nature of the crime to which I am pleading guilty; (3) that the trial judge has explained to me all of my rights to me and what rights I am waiving or giving up, as listed above, and that I have been given every opportunity by the trial judge to ask questions in open court about anything I do not understand and about all of the consequences regarding my plea of guilty. I am completely satisfied with the explanation of my attorney and the trial judge.
I FURTHER ACKNOWLEDGE THAT MY ACT OF PLEADING GUILTY IS A KNOWING, INTELLIGENT, FREE AND VOLUNTARY ACT ON MY PART. I know that no one can force 112me to plead guilty. I know that by pleading guilty I admit I committed the said crime. I know this plea of guilty is more than a confession. It is also a conviction. Nothing further remains except for the trial judge to give judgment and give me my punishment. I waive all delays for sentencing and acknowledge I am ready for sentencing.

The trial judge signed the statement that followed:

Having entered into the foregoing colloquy with the defendant, I am satisfied that the defendant is aware of the nature of the crimes to which he or she is pleading guilty, that the defendant did in fact commit the crime. I further find that he or she has made a knowing, intelligent, free and voluntary act of pleading guilty to the above mentioned crime. I have found that a factual basis exists for the defendant to plead guilty to the above mentioned crime. I, therefore, accept the defendant’s plea of guilty.

Assigned Error: Statutory and Constitutional Infirmities

As a general proposition, the validity of a guilty plea turns on whether the defendant was informed of three fundamental constitutional rights-his privilege against compulsory self-incrimination, his right to trial by jury, and his right to confront his accusers-and whether, having been informed of those rights, the defendant knowingly and voluntarily waived them. State v. Juniors, 03-2425 (La.6/29/05), 915 So.2d 291, cert. denied, Juniors v. Louisiana, 547 U.S. 1115, 126 S.Ct. 1940, 164 L.Ed.2d 669 (2006) citing Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), State v. Jones, 404 So.2d 1192, 1196 (La.1981), and State ex rel. Jackson v. Henderson, 260 La. 90, 103, 255 So.2d 85, 90 (1971). A plea cannot be considered voluntary without notice of the essential nature of the charge or charges. See: State ex rel Halvorsen v. Blackburn, 388 So.2d 806, 807 (La.1980) quoting Henderson v. Morgan, 426 U.S. 637, 645, 96 S.Ct. 2253, 2257-2258, 49 L.Ed.2d 108 (1976). This constitutional requirement is codified in La. C. Cr. P. art. 556.1(A)(1), which provides that the court shall not accept a guilty plea without first informing the defendant and determining that he understand the nature of the charge.

| isThe defendant argues that his plea is not knowing and voluntary because the trial judge did not explain the Boykin triad of rights to him during the plea colloquy. He also asserts that the trial judge failed to explain that he could ask for a judge trial. Furthermore, the defendant argues that his plea is constitutionally infirm because the trial court did not explain the nature of the charge as required by Article 556.1. The state disagrees.

Louisiana courts have expressly refused to expand the Boykin advisement to encompass all rights the defendant may be waiving or to include all possible consequences of a guilty plea. Id., quoting State v. Nuccio, 454 So.2d 93, 104 (La. 1984) (Boykin does not require “advising the defendant of any other rights [besides the fundamental triad] which he may have, nor of the possible consequences of his actions.”).

When a defendant is represented by counsel, the trial court accepting his guilty plea may presume that counsel has explained the nature of the charge in sufficient detail that the defendant has notice of what his plea asks him to admit. Id., citing Henderson v. Morgan, 426 U.S. 637, 644-47, 96 S.Ct. 2258, 2257-59, 49 L.Ed.2d 108 (1976). In Henderson, the high court stated: “Normally the record contains either an explanation of the charge by the trial judge, or at least a representation by defense counsel that the nature of the offense has been explained to the accused.” 426 U.S. at 647, 96 S.Ct. at 2258. The Court also stated that “even without such an express representation, it may be appropriate to presume that in most cases defense counsel routinely explain the nature of the offense in sufficient detail to give the accused notice of what he is being asked to admit.” Id.

In Juniors, supra, the defendant asserted that his guilty plea to the charge of armed robbery could not have been intelligent and voluntary, as required by Boykin, because the trial court gave an incorrect definition of armed robbery when informing the defendant of the offense to which he was pleading guilty. The Supreme Court found that the guilty plea colloquy clearly reflected that all constitutional requirements for accepting defendant’s guilty plea were satisfied. Furthermore, the defendant was represented by counsel, who presumably explained the nature of the charge against him in sufficient detail to provide him notice of what he was being asked to admit. 03-2425 at 61, 915 So.2d at 335.

In the present case, a contemporaneous waiver and acknowledgment of waiver form was executed. The defense counsel signed the contemporaneous statement that he had informed the defendant of the nature of the crime to which he was pleading guilty. In addition, the defendant signed the portion of the form that stated his attorney had explained the nature of the crime to which he was pleading guilty. The defendant also acknowledged during the plea colloquy with the trial judge that he understood the nature of the charge to which he was pleading guilty. Furthermore, the defendant was present at the preliminary examination where evidence of the offense was presented. In State v. Bowick, 403 So.2d 673, 675-76 (La.1981), the Louisiana Supreme Court held that the trial court did not err in | ^accepting the guilty plea under similar circumstances. In Bowick, the trial court did not enumerate the required elements of the offense but the defendant had previously been arraigned on the bill of information and a preliminary examination had been held at which evidence had been presented. Then at the plea, the defendant and his attorney both represented to the trial court that defense counsel had explained and that the defendant understood the nature of the crime to which he was pleading.

Thus, we find that the defendant was fully advised of the nature of the charge and therefore the trial judge did not err in accepting the guilty plea as voluntarily and knowingly entered.

The defendant also argues that the trial judge did not explain the Boykin triad of constitutional rights. The defendant evidently is relying on the plea colloquy during which the trial judge did not engage in a full explanation of the Boykin triad. In State v. Nuccio, 454 So.2d 93, 104 (La. 1984), called into doubt on other grounds by State v. Johnson, 94, p. 15 (La.11/27/95), 664 So.2d 94, 101, the Louisiana Supreme Court held that while a colloquy between the judge and defendant is the preferred method of proving a free and voluntary waiver of constitutional rights, the colloquy is not indispensable when the record contains some other affirmative showing of the waiver.

Moreover, contrary to the defendant’s assertion that the plea was invalid because the trial judge failed to explain he could ask for a judge trial, the Louisiana Supreme Court has held that advice as to the right to choose between a trial by judge or trial by jury is not a constitutional requirement for a valid plea of guilty. State v. Banks, 412 So.2d 1025, 1027 (La.1982). Accord, State v. Edwards, 384 So.2d 789, 790 (La.1980) (The trial judge is not required to inform defendant that he is waiving a trial by judge alone when he pleads guilty).

_[xgThe defendant relies on a case that predated Nuccio and is distinguishable— State v. Martin, 382 So.2d 933, 936 (La. 1980), overruled on other grounds by State v. Williams, 392 So.2d 448 (La.1980). In Martin, the Louisiana Supreme Court held that the record of the guilty plea proceeding showed that the defendant waived his right to remain silent at that proceeding, but it did not show his intention to waive his right not to testify against himself at a trial. For that reason, the defendant’s guilty plea could not be used as a predicate offense.

In the present case, unlike Martin, the record contains another affirmative showing of the waiver of the Boykin triad. Defense counsel signed a contemporaneous statement that he informed the defendant of his rights and the fact the defendant, by entering the guilty plea was waiving his right to trial by jury or by court alone, his right to confront his accusers, his right against self-incrimination, and that defense counsel was entirely satisfied that the defendant knowingly, willingly, intelligently, and voluntarily entered the guilty plea knowing the consequences. The defendant signed the form stating that he was completely satisfied with the explanation given by his attorney and the trial judge. He also initialed statements that gave a full explanation of the Boykin triad. That explanation included his privilege against self-incrimination “at any trial;” his right to confront his accusers; and, his right to compel testimony.

During the colloquy, the defendant agreed that he understood the Boykin rights and that by pleading guilty he was waiving them. The defendant stated that he could read and write the English language. He also stated that he attended school until the 11th grade. He said that he had read a written acknowledgment of waiver form in that it had been explained to him by his attorney. On the waiver form, he signed a statement that he was completely satisfied with the explanation given to him by his attorney and the trial judge. Thus, we need not consider the [ 17trial court’s failure to explain fully to the defendant his Boykin triad of rights during the plea colloquy because the record otherwise contains adequate evidence of an affirmative showing of the defendant’s knowing and intelligent waiver of his Boykin constitutional rights. Therefore, we find no merit in this assignment of error. Accord, State v. Dunn, 390 So.2d 525, 527 (La.1980) (The record showed a sufficient affirmative showing of the Boykin requirements.).

Conclusion

Accordingly, for the reasons stated, the motion to dismiss is denied; and, the defendant’s conviction and sentence are affirmed.

MOTION TO DISMISS APPEAL DENIED; CONVICTION AND SENTENCE AFFIRMED.

      . The record was reviewed for errors patent, according to La. C. Cr. P. art. 920; State v. Oliveaux, 312 So.2d 337 (La. 1975); State v. Weiland, 556 So.2d 175 (La.App. 5 Cir.1990). We note that the defendant suggests that the trial judge erred in imposing sentence immediately rather than allowing the three-day delay between conviction and sentence provided by La. C. Cr. P. art. 873. The defendant also suggests that such error is harmless because he is not challenging the sentence. Article 873, however, pertinently states; "If the defendant expressly waives the delay provided for in this article or pleads guilty, sentence may be imposed immediately.” In this case, the defendant pleaded guilty. Therefore, sentence could be imposed immediately.

      . On July 10, 2008, the trial judge denied the defendant’s June 30, 2008 filing claiming ineffectiveness of counsel.

      . La. C. Cr. P. art. 556.1 provides:
      A.In a felony case, the court shall not accept a plea of guilty or nolo contendere without first addressing the defendant personally in open court and informing him of, and determining that he understands, all of the following:
      (1) The nature of the charge to which the plea is offered, the mandatory minimum penalty provided by law, if any, and the maximum possible penalty provided by law.
      (2) If the defendant is not represented by an attorney, that he has the right to be represented by an attorney at every stage of the proceeding against him and, if financially unable to employ counsel, one will be appointed to represent him.
      (3) That he has the right to plead not guilty or to persist in that plea if it has already been made, and that he has the right to be tried by a jury and at that trial has the right to the assistance of counsel, the right to confront and cross-examine witnesses against him, and the right not to be compelled to incriminate himself.
      (4) That if he pleads guilty or nolo conten-dere there will not be a further trial of any kind, so that by pleading guilty or nolo con-tendere he waives the right to a trial.
      B. In a felony case, the court shall not accept a plea of guilty or nolo contendere without first addressing the defendant personally in open court and determining that the plea is voluntary and not the result of force or threats or of promises apart from a plea agreement.
      C. The court shall also inquire as to whether the defendant's willingness to plead guilty or nolo contendere results from prior discussions between the district attorney and the defendant or his attorney. If a plea agreement has been reached by the parties, the court, on the record, shall require the disclosure of the agreement in open court or, on a showing of good cause, in camera, at the time the plea is offered.
      D. In a felony case a verbatim record shall be made of the proceedings at which the defendant enters a plea of guilty or nolo con-tendere.
      E. Any variance from the procedures required by this Article which does not affect substantial rights of the accused shall not invalidate the plea.
      The 2001 comments to Article 556.1 state that Section E is a "Harmless error” provision.


source: Caselaw Access Project

author: SUSAN M. CHEHARDY, Judge.

license: Public Domain

text:
    Peggy T. GEREIGHTY Wife of/and Tavis Domingue v. Carla FOX, Syndistar, Inc., Educational Publishers and General Insurance Company of America.
    No. 09-CA-395.
    Court of Appeal of Louisiana, Fifth Circuit.
    Nov. 24, 2009.

      Andrew W. Eversberg, Attorney at Law, Baton Rouge, LA, for Appellants, Carla Fox and General Insurance Company of America.
    Kenneth W. Andrieu, Attorney at Law, New Orleans, LA, for Appellees, Peggy Gereighty and Tavis Domingue.
    Panel composed of Judges MARION F. EDWARDS, SUSAN M. CHEHARDY, and CLARENCE E. McMANUS.
   SUSAN M. CHEHARDY, Judge.

|2On appeal, the defendants seek review of the trial court’s ruling that granted a new trial and awarded additional damages to the plaintiffs. For the following reasons, we reverse the trial court’s ruling and reinstate the jury verdict.

Facts

On March 1, 2004 at 4:00 p.m., Carla Fox backed into Peggy Gereighty’s vehicle while both vehicles were stopped at the signal light at the intersection of Bonnabel Boulevard and 1-10 Service Road in Me-tairie, Louisiana. According to Mrs. Fox, while she was waiting for the light, she decided to continue on Bonnabel Boulevard so she wanted to move out of the left-turn lane into the middle lane. When Mrs. Fox looked into her rearview mirror before backing, she did not see Ms. Ger-eighty’s vehicle behind her. As Mrs. Fox backed up to avoid the car in front of her, she backed into Ms. Gereighty’s vehicle. Mrs. Fox testified that the impact was minor; her two-year-old son, who was also in her vehicle, was not awakened by the impact. Further, her vehicle, a 2003 Mitsubishi Montero, was not damaged by the impact.

| a At trial, Ms. Gereighty stated that, on March 1, 2004, she was waiting at a red light behind an SUV when she saw the vehicle’s reverse tail-lights illuminate. As she watched, the SUV moved towards her and hit her car. Upon impact, she was “pushed back in her seat.” At trial, she stated that, immediately after the accident on March 1, 2004, she “felt the pain in my neck, my upper back, middle back, my lower back, my — both my wrists and my ankles.” Further, Ms. Gereighty opined that the pain was very similar to pain that she suffered after her vehicle was rear-ended by another vehicle on December 23, 2002.

Ms. Gereighty admitted that she refused medical treatment from emergency medical technicians who happened past the accident scene right after the incident. Ms. Gereighty stated that she did not go in the ambulance because she wanted her husband to drive her to the hospital. Ms. Gereighty also admitted that she did not tell the investigating police officer that she was injured and, in fact, the incident report indicates that there were no injuries.

A little more than two hours after the accident, Ms. Gereighty sought medical treatment in the Emergency Room at East Jefferson General Hospital. According to hospital records admitted at trial, Ms. Ger-eighty presented “complaining of multiple areas of pain, primarily the neck and the low back, also both wrists, both elbows, and both ankles.” Dr. Frank Wilson noted that her lumbar spine, ankle and forearm x-rays were normal. However, Dr. Wilson and Dr. Reid, the radiologist, found that her cervical spine x-ray showed degenerative disc changes at C5/6. Dr. Wilson further noted that she exhibited “tenderness to the posterior cervical and lumbar spine with spasm.” His clinical impression was neck, back, wrist and ankle strain. The total hospital charge was $1,269.00.

|4Finally, Ms. Gereighty’s car, a 2001 Infiniti 130, was damaged but drivable. While her car was being repaired, Ms. Gereighty rented a vehicle, which Mrs. Fox’s insurance covered in part. According to the receipt introduced at trial, the unpaid portion of the rental car cost was $234.80.

On October 18, 2004, Peggy Gereighty and Tavis Domingue filed suit naming Carla Fox, Syndistar Educational Publishers, Inc. (the vehicle owner) and the liability insurer, General Insurance Company of America. Plaintiffs sought damages, “to include physical pain and suffering, mental anguish, permanent disability, medical expenses, past, present and future, loss of income, past, present and future, loss of earning capacity, loss of enjoyment of life, property damages, and loss of consortium, service and society,” which they urged stemmed from Fox’s negligence in backing into Ms. Gereighty’s vehicle.

Following a jury trial in the Twenty-Fourth Judicial District Court for the Parish of Jefferson that concluded on September 17, 2008, the jury completed a Jury Verdict Form. The jury found that Peggy Gereighty sustained injuries in the March 1, 2004 automobile accident. The jury further found that, although Carla Fox was negligent, her negligence was not the “proximate cause” of Peggy 15Gereighty’s injuries. Further, the jury declined to award Peggy Gereighty general damages but awarded $2,243.00 in special damages. Finally, the jury declined to award general damages to Tavis Domingue, Ms. Ger-eight/s husband. The trial judge made the jury’s verdict the Judgment of the Court on October 14, 2008.

Thereafter, the trial judge granted plaintiffs’ motion for new trial on the basis that the jury verdict was inconsistent. Subsequently, the trial judge awarded general damages of $45,000.00 and special damages of $24,560.32 to Peggy Gereighty and $15,000.00 for loss of consortium to Tavis Domingue. Carla Fox and her insurer filed a timely appeal seeking review of the grant of a new trial and the damage awards.

Law and Discussion

La. C.C.P. arts. 1972 and 1973 govern when the court may grant a motion for new trial. La. C.C.P. art. 1972 provides the peremptory grounds for a new trial: (1) when the verdict or judgment appears clearly contrary to the law and evidence, (2) when the party has discovered, since the trial, evidence important to the cause, which he could not, with due diligence, have obtained before or during the trial, and (3) when the jury was bribed or has behaved improperly so that impartial justice has not been done. Moreover, La. C.C.P. art. 1973 provides the trial court with discretionary authority to grant a new trial “in any case if there is good ground therefor, except as otherwise provided by law.”

Granting or denying a motion for new trial rests within the wide discretion of the trial court and its determination shall not be disturbed absent an abuse of that discretion. Engolia v. Allain, 625 So.2d 723, 729 (La.App. 1 Cir.1993). In considering a motion for new trial, the trial judge is free to evaluate evidence without favoring either party, and may draw his own inferences and conclusions and may evaluate the credibility of witnesses. Lambert v. State, through Dept. of Transp. & Development, 96-160 (La.App. 5 Cir. 10/16/96), 683 So.2d 839. However, the fact that a determination on a motion for new trial involves judicial discretion does not mean that the trial court can freely interfere with any verdict with which it disagrees. Wyatt v. Red Stick Services, Inc., et al., 97-1345 (La.App. 3 Cir. 4/1/98), 711 So.2d 745; Porche v. Winn-Dixie Louisiana, Inc., 93-2075 (La. App. 1 Cir. 10/7/94), 644 So.2d 699.

The discretionary power to grant a new trial must be exercised with considerable caution, for a successful litigant is entitled to the benefits of a favorable jury verdict. Fact finding is the province of the jury, and the trial court must not overstep its duty in overseeing the administration of justice and unnecessarily usurp the jury’s responsibility. A motion for new trial solely on the basis of being contrary to the evidence is directed squarely at the accuracy of the jury’s factual determinations and must be viewed in that light. Thus, the jury’s verdict should not be set aside if it is supportable by any fair interpretation of the evidence.

State, Dept. of Transp. and Development v. August Christina & Bros., Inc., 97-244 (La.App. 5 Cir. 2/11/98), 716 So.2d 372, 380-382.

In the instant case, the trial judge found that the jury’s verdict was inconsistent and granted a new trial. In his reasons for judgment, the trial judge, citing Cox v. Julian, 03-107 (La.App. 5 Cir. 5/28/03), 846 So.2d 986, noted that, “When a jury finds plaintiff suffered injuries in an accident, awards special damages, but fails to award general damages, the verdict is inconsistent.”

While we agree that a jury verdict awarding medical expenses but simultaneously denying damages for pain and suffering will generally be inconsistent in light of the record, we find that, under certain circumstances, the record will support both an award of medical expenses and a concurrent denial of general damages. Wainwright v. Fontenot, 00-0492 (La.10/17/00), 774 So.2d 70, 76.

[A] verdict awarding medical expenses yet denying general damages is not per se invalid. While the courts of many states have ^acknowledged that such a verdict can be erroneous, they generally have rejected the factfinder’s determination as to damages only where the failure to award general damages is factually inconsistent with a reasonable reading of the record, giving due deference to the jury’s findings of fact.

Wainwright, 00-492, 774 So.2d at 76. In this situation, the question for the court reviewing the trial judge’s grant of a new trial is determining whether the fact-finder’s verdict was inconsistent and, thus, an abuse of its discretion.

Recently, in Dubose v. Lemoine, 08-331 (La.App. 5 Cir. 1/13/09), 8 So.3d 57, this Court upheld the trier of fact’s judgment in favor of Ms. Dubose and against Mr. Lemoine and Allstate in the amount of $2,000.00 as “inconvenience damages.” In that case, Ms. Dubose was in her car in a line of vehicles waiting to exit a parking lot in Destrehan. Mr. Lemoine was backing his car out of a parking space and struck Ms. Dubose’s vehicle. She alleged the impact of the parking lot collision aggravated her pre-existing thoracic outlet syndrome, as well as left shoulder, arm, and left cervical injuries, for which she was receiving treatment before the accident at issue here. She also alleged the accident caused her to suffer migraine headaches and caused new injuries to her lower back, feet, and toes. There, as in our case, the plaintiffs treating chiropractor, Dr. Fitch, treated plaintiff up to the time of this accident for her pre-existing neck and back injuries. The trial court opined that,

Although the defendant was at fault in causing this accident, no medical expert testified at trial to establish the causation of plaintiffs alleged new injuries. Since plaintiffs pre-existing neck and back soft tissue injuries already required extensive, recurring medical treatment up to the date of this accident, I found the plaintiffs further medical treatment following this low impact accident to be exaggerated and unrelated. Accordingly, the proof at trial did not establish aggravation of her pre-existing injuries by a preponderance of the evidence.

This Court upheld the verdict on appeal. Id.

pin Coleman v. U.S. Fire Ins. Co., 571 So.2d 213 (La.App. 3 Cir.1990), the Third Circuit found that there was no error in the jury’s award of medical expenses but denial of general damages. There, plaintiff was injured in an automobile collision. While defendant’s vehicle was stopped behind plaintiffs vehicle at a traffic signal, defendant allowed his vehicle to roll forward, striking plaintiffs rear bumper. Id. The accident resulted in no damage to either vehicle, but plaintiff went to the hospital, where she was examined and released. Id. at 215. Following a trial on the merits, the jury awarded plaintiff $300.00 in special damages for medical expenses, but made no award for general damages. Id. at 214. The Third Circuit concluded that the jury could have found that, while plaintiff sustained no injuries, she was justified in going to the hospital for an examination following the accident. Id. at 215. The Court, thus, concluded that there was no inconsistency in the jury’s award of medical expenses for the hospital visit and denial of an award for pain and suffering. Id.

Similarly, in Olivier v. Sears Roebuck & Co., 499 So.2d 1058 (La.App. 3 Cir.1986), the Third Circuit again affirmed a jury’s award of medical expenses for an examination and denial of general damages where there was serious question as to whether the plaintiff had sustained any injury in the accident. The Court observed that “[t]he jury could have reasonably found that, although Mrs. Olivier did not receive any injuries in the accident, she was justified in getting a check-up.” Id. at 1063.

As demonstrated by Dubose, Coleman, and Olivier, a trier of fact can reasonably reach the conclusion that a plaintiff has proven his entitlement to recover certain medical costs, yet failed to prove that he endured compensable pain and suffering as a result of defendant’s negligence.

|flThe reviewing court must always keep in mind that if the findings of the trial court or jury are reasonable in light of the record reviewed in its entirety, the appellate court may not reverse, even if convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Stobart v. State through Dept. of Transp. and Development, 617 So.2d 880, 882-883 (La.1993).

We have carefully examined the entire record of this case and, although we may have weighed the evidence differently if we had been sitting as the fact-finder, we conclude that the jury’s findings were reasonable in light of the entire record and the verdict was based on a permissible view of the evidence. Further, we cannot say that the verdict of the jury was inconsistent or resulted in a miscarriage of justice. Simply put, there was ample evidence from which the jury could conclude that this low-impact incident resulted in no compensable pain and suffering.

“In a suit for damages, it is the plaintiffs burden to prove the damage he suffered as a result of defendant’s fault[.]” Brannan v. Wyeth Laboratories, Inc., 526 So.2d 1101 (La.1988). Here, Peggy Gereighty and Tavis Domingue bore the burden to establish, by a preponderance of the evidence, that they were entitled to general damages for pain and suffering and loss of consortium as a result of this incident.

First, plaintiff introduced testimony and records from Dr. Charles Billings, her treating orthopedist. The evidence reflects that plaintiff began treating with Dr. Billings in May 2003 in response to the December 2002 motor vehicle accident. On May 29, 2003, Ms. Gereighty reported wrist, ankle, neck, middle and lower back pain. Dr. Billings found no objective spasm but noted “Spurling’s test produced neck pain.” Further, Dr. Billings obtained radiographic images that day, which reflected “lumbar spine films show no overt osseous injury” and “C-spine |10films show substantial disc space narrowing C5-6 with anterior and posterior osteophyte formation.”

Dr. Billings also ordered an MRI of the cervical and lumbar spine. On June 3, 2003, Ms. Gereighty underwent the MRIs at Diagnostic Imaging Services (“DIS”). Dr. Michael Voth, a radiologist with DIS, found no abnormality in the lumber spine. However, Dr. Voth noted “multifactorial central and bilateral foraminal narrowing at C5-C6,” which reflect “extensive degenerative-type changes” and may also reveal a “slight impingement on the left side of the [spinal] cord.” Dr. Voth also noted “mild central narrowing at C4-C5 primarily related to small midline disc protrusion.”

On July 11, 2003, Dr. Billings’ impression after examination was “cervical disc disease with posttraumatie[sic] exacerbation, lumbar strain.” On February 5, 2004, three weeks before this accident, Ms. Gereighty complained of neck and back pain, with back pain that radiates towards legs. Dr. Billings’ impression remained “cervical disc disease with chronic lumbar strain.” Thus, her treating orthopedist’s records reflect that, less than one month before this incident, Ms. Gereighty was still in active treatment for injury from her December 2002 accident and/or pre-exist-ing degenerative cervical spine disease.

On March 15, 2004, two weeks after the accident in question, Ms. Gereighty presented again with low back and neck pain and “forgetfulness.” Dr. Billings noted “no objective spasm,” and noted that radio-graphs from the day of the accident appeared “normal.” We note that, during the remainder of 2004 and throughout 2005, Dr. Billings’ records indicate that she had “no change neck and back examination” with continued pain and his impression continued to be “cervical and lumbar disc disease,” as it was before this incident.

| nAlthough Ms. Gereighty continued to complain of pain, Dr. Billings’ reports do not reflect objective findings that her preexisting symptoms were exacerbated by the March 2004 wreck. Regarding his notation that Ms. Gereighty was a candidate for surgery, Dr. Billings stated that he would only advise surgery to a patient in this situation, if her complaints of pain could not be eliminated with more conservative methods. To date, Ms. Gereighty has not undergone surgery to repair her cervical spine. Ms. Gereighty discontinued treatment with Dr. Billings in August 2006.

Second, the medical records and testimony introduced at trial reflect that, as late as February 26, 2004, which was just days before this incident, Ms. Gereighty was still receiving physical therapy at Crescent City Physical Therapy for injuries that she sustained in her automobile accident on December 28, 2002. In an assessment by her physical therapist on March 3, 2004, just two days after the instant incident, she attended physical therapy and performed exactly the same exercises that she had performed a few days before the accident.

Although she did complain of increased pain, the physical therapist noted that Ms. Gereighty “continues with good trunk [range of motion] and pelvic positioning.” Based on this evidence, it is reasonable that the trier of fact found that, at the time of the accident, Ms. Gereighty’s injuries from the December 2002 accident had not been resolved and, further, that the March 2004 accident did not exacerbate those pre-existing injuries.

Finally, two months after this incident, Ms. Gereighty began visiting a chiropractor for her lower back pain. She did not seek treatment for her neck pain because she was under an orthopedist’s care for her cervical spine. At her first visit on May 12, 2004, the chiropractor’s treatment notes reveal that Ms. Gereighty presented with complaints of pain in her neck, right and left elbows, wrists, |12buttocks, hips, and legs. She reported that her pain prevented her from exercising, household tasks, and working. Further, walking and sitting both increase the pain in her legs and lower back.

On her visit to the clinic the next day, May 13, 2004, Ms. Gereighty reported that she felt “much better” after her adjustment therapy the previous day. On May 31, 2004, Ms. Gereighty is quoted, "I have really noticed an increase in mobility after my adjustments.” Ms. Gereighty continued in chiropractic adjustment therapy at least twice a week until December 27, 2004.

Of further note, Ms. Gereighty testified at trial that she was in an automobile accident on December 23, 2002, when her vehicle was rear-ended at a stop light by another car that was traveling about 35 mph. Further, Ms. Gereighty testified that, on or before September 7, 2005, she fell while walking through debris left in her home after Hurricane Katrina. Moreover, Ms. Gereighty testified, at the time of trial, she had been in automobile accidents, in which her vehicle was rear-ended on March 7, 2006, September 29, 2006, May 25, 2007, and March 19, 2008.

In the case at hand, the jury apparently found that the plaintiff proved that she incurred medical and incidental expenses as a result of the March 1, 2004 accident and awarded damages for those claims but did not find that the plaintiff proved that she experienced exacerbated pain and suffering, or other special damages, because of the incident that Mrs. Fox caused. As we have often observed, we are reluctant to disturb such credibility determinations by the finder of fact. Arceneaux v. Domingue, 365 So.2d 1330 (La.1979); Canter v. Koehring Co., 283 So.2d 716 (La.1973). We find, thus, that the trial court committed error in granting a new trial on an alleged inconsistency.

Furthermore, in our view, the trial judge granted a new trial because he personally disagreed with the amount of the award made by the jury and wished to 113award what he himself believed was just compensation. However, the trier of fact — the jury — made its determinations, and it is not for the trial court or this court, absent evidence of unfairness, mistake, partiality, prejudice, corruption, exorbitance, excessiveness, or a result that is offensive to the conscience and judgment of the court, to disturb them.

In sum, the jury’s verdict in this matter was based on a permissible view of the evidence consistent with the determinations made by the fact-finders in Coleman and Olivier, supra. We, thus, reinstate the jury’s original award of $2,243.00 in damages to Peggy Gereighty. For the reasons cited herein, the new trial is reversed, and the judgment of the jury is reinstated. Costs are assessed against ap-pellees, Peggy Gereighty and Tavis Do-mingue.

NEW TRIAL REVERSED; JUDGMENT REINSTATED.

      . According to the plaintiff, her car's hood was "crunched up,” and the radiator, front bumper, and front lights were damaged. At trial, the plaintiff submitted a damage repair estimate of $5,193.52. The actual cost of repairing the vehicle was not introduced at trial.

        . By Joint Motion, Syndistar was dismissed on December 18, 2007.

      . In this case, the completed Jury Verdict Form read as follows:
      1). Do you find that defendants, Carla Fox and General Insurance Company of America, were negligent regarding the accident on March 1, 2004?
      x YES NO
      2). Do you find that defendants' negligence was a proximate cause of the injuries sustained by plaintiffs?
      _YES x NO
      3). Do you find that Peggy Gereighty was negligent regarding the accident on March 1, 2004?
      _YES x NO
      4). Did the plaintiff, Peggy T. Gereighty, sustain any damages as the result of the accident on March 1, 2004?
      x YES _NO
      If you answered "YES” to Question 4, please put the amounts that the plaintiff, Peggy Gereighty, is entitled to for the damages sustained in the accident at issue in the spaces below....

        General Damages (Pain & Suffering) $ 0 .
      Special Damages (Medical expenses, Property Damages, Lost Wages) $2000,00 + $243.00
      5). Did the plaintiff, Tavis Domingue, sustain any damages as the result of the accident on March 1, 2004?
      _ YES x NO


author: MARC E. JOHNSON, Judge.

text:
    STATE of Louisiana v. Craig LONDON.
    No. 09-KA-398.
    Court of Appeal of Louisiana, Fifth Circuit.
    Nov. 24, 2009.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Desiree M. Valenti, Assistant District Attorneys, Gretna, LA, for Plaintiff/Appellee.
    Gwendolyn K. Brown, Attorney at Law, Louisiana Appellate Project, Baton Rouge, LA, for Defendant/Appellant.
    Panel composed of Judges SUSAN M. CHEHARDY, CLARENCE E. McMANUS and MARC E. JOHNSON.
   MARC E. JOHNSON, Judge.

12Pefendant filed an appeal of his sentence of 20 years at hard labor without the benefit of probation or suspension of sentence from the 24th Judicial District Court. After an error patent review of the record, we vacate the multiple offender sentence and remand the case to the trial court for resentencing of defendant.

STATEMENT OF THE CASE

A Jefferson Parish grand jury indicted Defendant, Craig London, on September 30, 2002 and charged him with second degree murder in violation of LSA-R.S. 14:3o.!. He pled not guilty and filed several pre-trial motions, including a motion to suppress the evidence and statement. The motion was denied after a hearing. The State, subsequently, amended the indictment to charge Defendant with the lesser offense of manslaughter in violation of LSA-R.S. 14:30. Defendant withdrew his not guilty plea and pled guilty to the amended manslaughter charge. Pursuant to a plea agreement, the trial court sentenced Defendant to 20 years at hard labor.

| .-¡Thereafter, the State filed a habitual offender bill of information alleging that Defendant was a second felony offender based on a prior conviction for aggravated battery. Pursuant to a plea agreement, Defendant stipulated to the allegations contained in the habitual offender bill. The trial court vacated Defendant’s original 20 year sentence at hard labor and imposed an enhanced sentence of 20 years without the benefit of probation or suspension of sentence under LSA-R.S. 15:529.1.

Defendant, subsequently, obtained this out-of-time appeal.

FACTS

Because Defendant pled guilty, the facts and circumstances surrounding the offense are not developed in the record. During the plea colloquy, the State stated that on March 12, 2001, Defendant and his co-defendant, Brandon Robertson, walked into Harriet Braun’s notary and title company located on Williams Boulevard in Kenner and shot her dead.

ERROR PATENT DISCUSSION

In accordance with La. C. Cr. P. art. 920, State v. Oliveaux, 312 So.2d 337 (La.1975), and State v. Weiland, 556 So.2d 175 (La.App. 5 Cir.1990), the record was reviewed for errors patent. We find that the habitual offender bill of information is defective. In the bill, the State sought to enhance Defendant’s manslaughter sentence based on an aggravated battery conviction that was not obtained until after the commission of the manslaughter.

Defendant’s underlying offense of manslaughter was committed on March 12, 2001. He was not convicted until September 26, 2007. The habitual offender bill alleges Defendant was convicted of the predicate offense on November 29, |42001. Thus, the predicate conviction occurred after the commission of the underlying offense but prior to the conviction for the underlying offense.

In State v. Johnson, 03-2993, p. 18 (La.10/19/04), 884 So.2d 568, 578, the Louisiana Supreme Court held that from its inception, LSA-R.S. 15:529.1 has required that “for sentence enhancement purposes, the subsequent felony must be committed after the predicate conviction or convictions.” The Louisiana Supreme Court reiterated this requirement in State v. Shaw, 06-2467, p. 13 (La.11/27/07), 969 So.2d 1233, 1241.

In State v. Newman, 99-841, p. 13 (La. App. 5 Cir. 12/15/99), 750 So.2d 252, 259, this Court addressed the same issue as the result of an error patent review. In Newman, the defendant was alleged to be a fourth felony offender. He committed the underlying offense on April 1, 1996 but was not convicted of the third predicate offense until December 1, 1997. This Court noted that, although the conviction for the underlying offense was obtained after the conviction for the third offense, the underlying offense was committed pri- or to the conviction for the third predicate offense. Thus, the defendant should not have been found to be a fourth felony offender.

|sAlso, in State v. Gilbert, 99-315, p. 7 (La.App. 5 Cir. 4/25/00), 760 So.2d 586, 539, this Court found a similar legal defect in the habitual offender bill that required the defendant’s stipulation and sentence as a second felony offender be vacated. The defendant committed the underlying offense on April 2, 1998. The State filed a habitual offender bill alleging the defendant was a second felony offender based on a predicate conviction that was obtained on April 10, 1998. After being advised of his habitual offender rights, the defendant admitted the allegations contained in the bill. This Court determined that because the conviction for the predicate offense did not occur prior to the commission of the underlying offense, the predicate conviction could not be used to enhance the defendant’s sentence. This Court noted that, although the defendant admitted to the allegations in the habitual offender bill, he could not be a habitual offender under La. R.S. 15:529.1 based on the predicate conviction. Id. at 8, 760 So.2d at 540.

In the present case, Defendant was alleged to be a second felony offender based on a predicate conviction obtained after the commission of the underlying offense. Pursuant to Johnson and reiterated in Shaw, Defendant could not have been found to be a second felony offender based on a predicate conviction obtained after the commission of the underlying felony.

Therefore, we vacate Defendant’s stipulation to the habitual offender bill, and the matter will be remanded to the trial court, so Defendant can be re-sentenced as a first offender.

| ^ASSIGNMENTS OF ERROR

Although defendant raised four assignments of error in his brief concerning his sentence according to the plea agreement, the original plea agreement and sentence were vacated and superseded by Defendant’s stipulation to the habitual offender bill. As a result, Defendant’s assignments of error are rendered moot by our finding that the habitual offender bill is defective, and that the enhanced sentence must be set aside.

DECREE

For the foregoing reasons, we vacate the habitual offender sentence and remand the case to the trial court for resentencing of Defendant, in accordance with the law.

SENTENCE VACATED; REMANDED TO TRIAL COURT FOR RESEN-TENCING.

      . Co-defendant, Brandon Robertson, was also charged in the indictment. The defendants were severed for purposes of trial. Robertson was convicted of second degree murder and his conviction was affirmed on appeal. State v. Robertson, 08-297 (La.App. 5 Cir. 10/28/08), 995 So.2d 650.

      . The error patent discussion is presented first because there is an error patent that requires Defendant's multiple offender stipulation and sentence to be set aside, thereby, rendering all of Defendant’s assignments of error moot.

      . Of note, the Newman court relied on State ex rel Mims v. Butler, 601 So.2d 649 (La. 1992), which has since been overruled by State v. Johnson, supra. In Mims, the Louisiana Supreme Court determined that LSA-R.S. 15:529.1 contained a sequential requirement for enhanced penalties in the sentencing of habitual offenders. Specifically, Mims determined that the defendant could not be found to be a third felony offender because two of the predicate convictions were obtained on the same day. The Louisiana Supreme Court explained that a second offender status can only result from an offense committed after a first conviction, and third offender status can only result from an offense committed after a conviction which qualifies defendant as a second offender. Thus, under Mims, LSA-R.S. 15:529.1 had a sequential requirement where there had to be a commission followed by a conviction, then commission followed by another conviction. State ex rel Mims v. Butler, supra at 650-51. This sequential requirement had become known as the "one day, one conviction rule.” State v. Shaw, 06-2467, p. 12 (La.11/27/07), 969 So.2d 1233, 1241.
      In overruling Mims, the Louisiana Supreme Court in Johnson, 884 So.2d at 570, determined that a 1982 amendment to LSA-R.S. 15:529.1 removed the statute’s sequential requirement for enhanced penalties in the sentencing of multiple offenders. As such, the Supreme Court concluded that the defendant could be found to be a fourth felony offender because he had been convicted three times at the time he committed the underlying felony. It no longer mattered, as it did under the sequential requirement, that two of the prior convictions were obtained on the same day.
      Despite relying on Mims, this Court's conclusion in Newman is still valid. As explained in Johnson, "the only requirement in the [habitual offender] statute is one which has been imposed from the inception: for sentence enhancement purposes, the subsequent felony must be committed after the predicate conviction or convictions.” In Newman, the subsequent felony was committed before the third predicate conviction, and, therefore, defendant could not be a fourth felony offender based on the charged third predicate.

      . The Gilbert court likewise relied on Mims in its reasoning. However, as discussed above in footnote 3, in light of the supreme court’s clarification in Johnson, this Court's reliance on Mims does not invalidate the result reached in Gilbert.

      . Generally, a plea of guilty waives all non-jurisdictional defects in the proceedings prior to the plea and precludes review of such defects either by appeal or post-conviction relief. State v. Crosby, 338 So.2d 584, 588 (La. 1976); State v. Gaspard, 01-1042, p. 3 (La.App. 5 Cir. 5/29/02), 820 So.2d 1095, 1096.
      In Crosby, the Louisiana Supreme Court defined jurisdictional defects as those which, even conceding a defendant's factual guilt, do not permit conviction of the charged offense. The Supreme Court listed the following examples of jurisdictional defects: (1) the lack of jurisdiction of the sentencing court, (2) the conviction represents double jeopardy, (3) the prosecution had prescribed at the time it was instituted, (4) the State lacked constitutional or legal power to Uy the defendant for the charged offense, (5) the statute under which prosecution is brought is unconstitutional, (6) the charge in the indictment does not constitute a crime, and (7) certain types of patent errors that prevent conviction for the offense. Id. at 588.
      As noted in Gilbert, Defendant could not be a multiple offender under LSA-R.S. 15:529.1 based on the predicate offense alleged in the multiple bill. Thus, this error patent prevents defendant from being adjudication as a multiple offender. Accordingly, defendant’s stipulation to the multiple bill did not waive this legal defect.


text:
    Betty Cheramie LANGLEY v. Rachel Fahrig BILLIOT.
    No. 09-CA-433.
    Court of Appeal of Louisiana, Fifth Circuit.
    Nov. 24, 2009.

      Dale J. Brou, Attorney at Law, Luling, LA, for Plaintiff/Appellee, Betty Cheramie Langley.
    Charles L. Stern, Jr., Danielle C. Ba-bashoff, The Steeg Law Firm, L.L.C., Attorneys at Law, New Orleans, LA, for Defendant/Appellant, Rachel Fahrig Billi-ot.
    Panel composed of Judges SUSAN M. CHEHARDY, CLARENCE E. McMANUS, and MARC E. JOHNSON.
   SUSAN M. CHEHARDY, Judge.

12This is a petitory action in which the trial court ruled in the plaintiffs favor and the defendant appeals. We reverse.

PROCEEDINGS BELOW

The property at issue is a strip of undeveloped land (“the Disputed Property’) in Boutte, St. Charles Parish, described as follows:

A portion of land situated on the right bank of the Mississippi River in the Parish of St. Charles, and being a portion of a tract of land known as the southern portion of the Southeast quarter of Section Eleven (11) T14S; R20E, measuring one hundred and thirty-five feet (135’) front on a road running on the lower line of said tract by a depth extending to the upper line of said quarter section, bounded on the North by the property of the Ellington Planting Company and south by the property of Mrs. William Cadow (Mrs. Eulalie Tinney Ca-dow).
Being the same property acquired by Mistress Mary Tinney, wife of Lucius J. Langley, from Stephen D. Tinney on January 2nd, 1907, and recorded in the office of the clerk of court of St. Charles Parish in COB “N”, folio 556.

Plaintiff, Betty Langley, filed suit in September 2005, seeking to be recognized as owner of the Disputed Property through a chain of title reaching back to the sovereign. She alleged that Defendant, Rachel Billiot, had deposited | .-¡various abandoned vehicles and trailers on the property and had made verbal claim of ownership to the Disputed Property.

Defendant denied the validity of Langley’s claim and filed a reconventional demand, alleging she and her ancestors have been in possession of the property since 1974 and that she had obtained a quitclaim deed to the property. Defendant asserted ownership through acquisitive prescription of either ten years or thirty years.

Prior to trial, the court and the parties agreed the trial would be in three phases: phase 1, to establish whether Defendant had been in possession of the Disputed Property for at least one year prior to filing of suit; phase 2, to establish whether Plaintiff had valid title; phase 3, to establish whether Defendant had possessed the property for long enough to establish acquisitive prescription.

During the first stage of trial, the court heard evidence of how long Defendant had been in possession of the Disputed Property prior to suit. The court found that Defendant had possession of the Disputed Property for at least one year prior to the filing of this suit.

The burden then shifted to Plaintiff to prove she has a valid chain of title extending back to the sovereign. Plaintiff introduced her chain of title, consisting of 32 documents accompanied by testimony to validate and explain some of the documents.

At conclusion of that portion of the trial, Defendant moved for involuntary dismissal, arguing that Plaintiff had failed to present evidence of a complete title. Specifically, Defendant challenged three separate gaps or breaks in the chain of title: (1) from 1874 to 1881; (2) from 1927 to 1930; (3) from 1933 to 1986. The |4court denied the motion, finding that Plaintiff had carried her burden of proof and had shown she has a good chain of title to the Disputed Property.

The trial then moved to its third phase, hearing evidence on Defendant’s claim of acquisitive prescription. At conclusion of phase 3, the court took the case under advisement.

Several weeks later the court issued its ruling. The judgment declared Plaintiff to be the legal owner of the Disputed Property, ordered Defendant to remove all abandoned vehicles and trailers she owns or has caused to be placed on the property, and dismissed Defendant’s reconventional demand.

In written Reasons for Judgment, the court stated,

Plaintiff produced proof that Stephen D. Tinney was a prior owner of all the property comprising the “Mary Tinney” tract and all of the property comprising the adjacent “Eulalie Tinney Cadow” tract. Stephen Tinney subdivided his property and transferred the tracts to his sisters, two of whom were Mary Tinney and Eulalie Tinney. Defendant’s Lots 1 and 2, adjacent to the “Mary Tinney” tract, are a portion of the “Eu-lalie Tinney” tract. Therefore, plaintiff has made out a sufficient case that Stephen D. Tinney was a prior common owner to all owners of property in both the “Mary Tinney” and the “Eulalie Tin-ney Cadow” tract.

The court discussed two gaps in the chain of title—1927-1930, listed as (2) above, and 1933-1986, listed as (3) above— for which the court found adequate evidence to link the owners prior to and following each gap. The court concluded these were not fatal defects. The court did not mention the gap from 1874 to 1881, listed as (1) above.

The court reiterated the rulings made during trial regarding Defendant’s possession and Plaintiffs chain of title. In addition, the court found that Defendant had not possessed the Disputed Property for 30 years and Defendant did not satisfy the requirement of good faith to qualify for ten-year acquisitive prescription.

| ¡^Defendant appeals. In her only assignment of error, she asserts the trial court erred in denying her Motion for Involuntary Dismissal. She argues Plaintiff failed to carry her burden of proof under La. C.C.P. art. 3653 and Pure Oil Co. v. Skinner, 294 So.2d 797 (La.1974), by failing to present evidence of a complete chain of title back to the sovereign.

LAW AND ANALYSIS

“One who claims the ownership of an immovable against another in possession must prove that he has acquired ownership from a previous owner or by acquisitive prescription. If neither party is in possession, he need only prove a better title.” La. C.C. art. 531.

“The petitory action is one brought by a person who claims the ownership, but who is not in possession, of immovable property or of a real right therein, against another who is in possession or who claims the ownership thereof adversely, to obtain judgment recognizing the plaintiffs ownership.” La. C.C.P. Art. 3651.

To obtain a judgment recognizing his ownership of immovable property or real right therein, the plaintiff in a petitory action shall:
(1) Prove that he has acquired ownership from a previous owner or by acquisitive prescription, if the court finds that the defendant is in possession thereof; or
(2) Prove a better title thereto than the defendant, if the court finds that the latter is not in possession thereof.
When the titles of the parties are traced to a common author, he is presumed to be the previous owner.

La. C.C.P. Art. 3653.

In Pure Oil Co. v. Skinner, 294 So.2d 797 (La.1974), our supreme court held that a plaintiff not in possession versus a defendant who is in possession is required “to show good title against the world without regard to the title of the party in possession.” 294 So.2d at 799. Title is made out when an unbroken chain of valid titles from the sovereign is shown. Whitley v. Texaco, Inc., 434 So.2d 96, 103 (La.App. 5 Cir.1982), writ denied, 435 So.2d 445 (La.1983).

“The case law is clear that ‘title good against the world’ means one must produce an unbroken chain of record title back or show ownership through acquisitive prescription.” Cuny v. Quinn, 03-649, p. 5 (La.App. 5 Cir. 10/28/03), 860 So.2d 232, 237.

Defendant asserts the documents introduced by Plaintiff show a seven-year gap that is fatal to Plaintiffs claim. The chain of title shows that in 1874 the Disputed Property was owned by Laura M. Bielman, through the Succession of John M. Biel-man, and in that year it was adjudicated to the State of Louisiana for unpaid property taxes. The next document in Plaintiffs chain reflects that Henry S. Lang sold the Disputed Property to Stephen D. Tinney in 1881. Defendant points out that Plaintiff has admitted that “no record of acquisition by Henry S. Lang is found in the State Land Office or in the St. Charles Parish conveyance records.” Similarly, there is no recorded document that shows how title was passed from the State to another party after the 1874 tax adjudication.

Defendant contends this gap between the adjudication to the State in 1874 and the sale by Lang to Tinney in 1881 means Plaintiffs chain of title does not meet the standard of La. C.C.P. art. 3653 and the Louisiana jurisprudence interpreting that article.

Defendant points out that the trial court failed to address the gap in its written Reasons for Judgment. During trial, however, when the court denied | ^Defendant’s Motion for Involuntary Dismissal, the court stated that although Plaintiff was required to show an unbroken chain of title, it did not have to be perfect title, referring to the case of Cuny v. Quinn, 03-0649 (La.App. 5 Cir. 10/28/03), 860 So.2d 232.

Defendant argues the trial court erred in its interpretation of Cuny, and the line of cases on which Cuny relied, as equating a gap in title with imperfect title:

[T]he rule that title does not have to be “perfect” to satisfy the requirements of article 3653 allows a court to declare that a chain of title has been proven when there are minor errors and omissions that do not threaten the veracity of the chain. In a chain of title that is “apparently good,” what appears to be a gap in title is not actually a break in the chain, but merely requires further inquiry by the court to fully link two documents together. In an incomplete chain of title, there is a document or more missing from the chain, without which the whole chain breaks down. None of the cases from which Cuny originates makes an exception to the fundamental rule that the plaintiff must show a complete chain of title to the sovereign.

(Brief of Defendant/Appellant, p. 9)

In opposition to the appeal, Plaintiff cites Whitley, 434 So.2d at 102, for the statement, “The plaintiff in a petitory action against a defendant in possession makes out his title when he proves his ownership either by an unbroken chain of valid transfers from the sovereign or an ancestor in common with the defendant.” (Emphasis added.)

Plaintiff contends the real issue on appeal is whether Plaintiff is required to prove a valid unbroken title or whether proof of a common ancestor in title suffices. In tracing the chains of title presented both by herself and by Defendant, Plaintiff points out their common ancestor in title was Stephen D. Tinney, who acquired by sale from Henry S. Lang in 1881.

|RIn rebuttal Defendant argues there is no common author in title between Plaintiff and Defendant. She points out, further, that this argument was never presented to the trial court: “There is no reference to a common author or ancestor-in-title between Billiot and Langley when it comes to the Disputed Property in any written filing or any argument made by her counsel at trial.” (Reply Brief of Defendant/Appellant, p. 2) Defendant contends, therefore, this Court cannot consider the common-author-in-title argument.

Issues not urged in the court below or raised by the pleadings cannot be considered on appeal. Council of the City of New Orleans v. Washington, 2009-1067 (La.05/29/09), 9 So.3d 854, 856-857.

Defendant asserts, further, even if this Court were to consider the argument, Plaintiff still cannot carry her burden of proof showing a common author. Defendant admitted at trial she has no title to the Disputed Property; therefore, she cannot share a common author to that property with Plaintiff.

When a defendant has no title whatsoever, it is incumbent on the plaintiff to trace its title back to the sovereign. Bickham v. Graves, 457 So.2d 1210, 1212 (La.App. 1 Cir.1984).

Defendant argues the gap in title that is the focus of this appeal occurred from 1874 to 1881, prior to the acquisition of Stephen D. Tinney. Even if there were a common author, therefore, the gap in Langley’s chain of title destroys the entire chain such that she could not bear her burden of proof.

When a defendant is in possession of the property in dispute, a showing of a common author is not enough to satisfy the burden laid out in Pure Oil v. Skinner of “title good against the world.”

| flSimilarly, Defendant disputes Plaintiffs argument on appeal that La. Const. 1921, Art. XIV, § 12, “de facto confirms” Stephen D. Tinney’s 1881 acquisition of the Disputed Property. Defendant states Plaintiff apparently invoked the constitutional provision to attack the validity of the 1874 tax adjudication. Defendant points out this argument was not explored by either the parties or the court at trial. In this case, therefore, Plaintiff cannot rely on any presumption that the property was returned to the previous owner, but must affirmatively prove that the State did not dispose of, sell, or donate the property to any other person or entity prior to 1921. Plaintiff presented no evidence that the State was still in possession of the Disputed Property in 1921.

Further, even if the State possessed the Disputed Property in 1921, Plaintiff has not resolved the original gap in the chain of title. If the 1874 tax adjudication to the State were null, then title would have remained vested in Laura Bielman Tinney, owner of the property prior to the adjudication. One of Plaintiffs exhibits was a Tinney Family Tree, which shows that Laura Bielman Tinney died in 1888. There is no evidence that Laura Bielman Tinney disposed of the Disputed Property prior to her death. Instead, in 1881 Henry S. Lang sold the disputed property to Stephen D. Tinney; there is no evidence to show how title passed from Laura Bielman Tinney to Henry D. Lang.

Defendant further contends Plaintiffs argument that the chain of title need only be shown to be “apparently good” is flawed. Defendant asserts the cases cited by Plaintiff, in fact, allow a less-than-perfect title to be confirmed when there are minor typographical errors or an unopened succession that passed title to the next owner. Such minor errors or omissions do not threaten the integrity of the chain of title. None of the cases cited by Plaintiff involved an unexplained gap in the chain of title.

[ ^Defendant concludes,

Pure Oil remains good law and is still the standard for determining the burden of proof for the plaintiff in a petitory action. A chain of title which contains a major gap for seven years is not “good title against the world” or even “apparently good” title. It is no title whatsoever. Since [Plaintiff] could not carry her burden of proof, [Defendant’s] Motion for Involuntary Dismissal should have been granted.

We find merit to Defendant’s arguments. Plaintiff failed to carry her burden of proving her chain of title back to the sovereign. The gap from 1874 to 1881 was unexplained, and as such it interrupts tracing title back to the sovereign. Further, Plaintiffs claim it suffices to trace her title back to an ancestor-in-title in common with Defendant has no merit.

For the foregoing reasons, therefore, the judgment is reversed. Judgment is rendered dismissing Plaintiffs suit at her costs.

REVERSED.

      . Defendant's parents bought land abutting the Disputed Property in the 1974. According to Defendant, her parents soon began using part of the Disputed Property as an extension of their back yard: cutting trees, mowing grass, building sheds, installing trailers, and keeping livestock on it.

      . Defendant-appellant notes she disagrees with the trial court's findings regarding her claim of acquisitive prescription, but she does not challenge them on appeal.

      . Defendant does have title to certain property adjacent to the Disputed Property, once supposedly owned by Stephen D. Tinney. She points out that this property is not part of the Disputed Property, however, so any previous owner of her property would not result in a common author with Plaintiff.


author: MICHAEL E. KIRBY, Judge.

text:
    STATE of Louisiana in the Interest of S.D.
    No. 2009-CA-1113.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 9, 2009.
    Leon A. Cannizzaro, Jr., District Attorney, Alyson Graugnard, Assistant District Attorney, New Orleans, LA, for Appellant.
    Pascale Belizaire Watson, Juvenile Regional Services, Inc., New Orleans, LA, for Appellee, S.D.

      (Court composed of Judge JAMES F. McKAY, III, Judge MICHAEL E. KIRBY, Judge PAUL A. BONIN).
   MICHAEL E. KIRBY, Judge.

|, The State of Louisiana appeals the judgment of the Orleans Parish Juvenile Court, dismissing the State’s petition against S.D. because he was not timely adjudicated. Because we find the record adequately demonstrates the State established good cause for the continuances within the applicable prescriptive period, we reverse and remand.

STATEMENT OF FACTS AND PROCEDURAL HISTORY:

The delinquency petition charged S.D. with one count of possession of a firearm and narcotics in violation of La. R.S. 14:95(E). A continued custody hearing was held that date. The Juvenile Court found no probable cause for the arrest, and S.D. was released into the custody of his parents.

On March B, 2009, S.D. appeared in court and denied the charges. An adjudication hearing was set for April 20, 2009.

On April 20, 2009, S.D. appeared for trial. The State requested that the matter be continued for “good cause” asserting that the State had been unable to obtain the crime lab report from the police department. The continuance was granted, and the adjudication hearing was re-scheduled for May 19, 2009.

|2On May 19, 2009, S.D. appeared for trial. The State requested another continuance for “good cause” since the arresting police officer was recovering from two broken legs. The defense objected. The continuance was granted, and the matter was re-scheduled for June 30, 2009.

On June 3, 2009, S.D. filed a motion to dismiss the petition for failure to timely prosecute. When the matter came before the trial court, the motion to dismiss the petition for failure to timely prosecute was granted.

DISCUSSION:

S.D.’s motion to dismiss is premised on the State’s failure to timely prosecute pursuant to La. Ch.C. art. 877:

A. If the child is continued in custody pursuant to Chapter 5 of this Title, the adjudication hearing shall commence within thirty days of the appearance to answer the petition.
B. If the child is not continued in custody, the adjudication hearing shall commence within ninety days of the appearance to answer the petition.
C. If the hearing has not been commenced timely, upon motion of the child, the court shall release a child continued in custody and shall dismiss the petition.
D. For good cause, the court may extend such period.

In the present case, because S.D. was not continued in custody, the State had ninety days from the appearance to answer the petition to bring the matter to trial pursuant to La. Ch.C. art. 877(B). Applying the formula set forth in La. Ch.C. art. 114, S.D.’s adjudication hearing should have commenced by June 1, 2009.

The Louisiana Supreme Court held in State, in Interest of R.D.C., Jr., 93-1865, p. 5 (La.2/28/94), 632 So.2d 745, 749, that the time period set forth in La. |3Ch.C. art. 877 is mandatory and that “it is incumbent on the state to make a showing of good cause and obtain an extension before the period has run.” The Court further noted that in considering what constitutes good cause, the judge should be mindful of those situations or causes beyond the control of the state that may impinge on its ability to prepare for a hearing.

La. Ch.C. art. 876 provides, in pertinent part, that “[f]or good cause, the court may dismiss a petition on its own motion, on the motion of the child, or on motion of the petitioner.” What constitutes good cause, i.e., a legally sufficient reason, for dismissal of a juvenile delinquency matter must be determined on a case-by-case basis and must be fully supported by the record. State ex rel. S.R., 2008-0785 p. 4 (La.App. 4 Cir. 10/8/08), 995 So.2d 63, 66. The Juvenile Court is vested with broad discretion in determining whether a case should be dismissed for good cause. State ex rel R.G., 2006-1625, p. 3 (La.App. 4 Cir. 7/18/07), 963 So.2d 475, 477.

The transcript from the April 20, 2009 hearing reflects that the State specifically asked that the matter be continued for good cause on the basis that the State had been unable to obtain the crime lab report from the police department. Upon this assertion, the continuance was granted.

The transcript from the May 19, 2009 hearing reflects that the State asked that the matter be continued for good cause in light of the arresting officer being out with two broken legs. Without questioning the State on the issue, the trial court granted the continuance and set the matter for hearing beyond the ninety day time period.

Lin both instances, the State’s continuances were requested for good cause and granted within the statutory time period. It is abundantly clear that the State established that there was just cause, as the delay was beyond its control.

The transcript of the hearing on the motion to dismiss reveals that the trial judge conceded that the State made a good cause showing in the requests for continuances, yet granted the dismissal because, as the trial judge stated, he “didn’t make a good cause finding.” (Emphasis added).

As previously stated, it is incumbent on the State to make a showing of good cause to obtain an extension pursuant to La. Ch.C. art. 877. State, in Interest of RDC, 93-1865, at p. 5, 632 So.2d at 748. Here, the record clearly reflects that good cause was demonstrated by the State, and the continuances were duly granted. That the trial court failed to render a specific “finding” of good cause does not negate this circumstance and does not present a legally sufficient reason for the dismissal of the petition. In sum, a good cause showing was made, and the continuance granted on that showing constitutes an implicit finding of good cause. As such, it was error for the trial court to grant S.D.’s motion to dismiss.

CONCLUSION:

For these reasons, we reverse the judgment of the trial court, reinstate the petition, and remand the matter for further proceedings.

REVERSED AND REMANDED.


author: ROLAND L. BELSOME, Judge.

text:
    STATE of Louisiana v. Emanuel SMITH.
    No. 2009-KA-0771.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 30, 2009.

      Leon A. Cannizzaro, Jr., District Attorney, Matthew Caplan, Assistant District Attorney, New Orleans, LA, for Appellee, State of Louisiana.

      Christopher A. Aberle, Louisiana Appellate Project, Mandeville, LA, for Defendant/Appellant.
    (Court composed of Judge DENNIS R. BAGNERIS, SR., Judge ROLAND L. BELSOME, Judge PAUL A. BONIN).
   ROLAND L. BELSOME, Judge.

The State of Louisiana charged Emanuel Smith by bill of indictment with one count of violating La. R.S. 40:967(C)(2), possession of crack cocaine. He appeared before the trial court for arraignment and pled not guilty to the charge. The trial court heard and denied the defendant’s motion to suppress evidence and found sufficient probable cause to substantiate the charge after conducting a preliminary hearing. The matter was set for a January 7, 2009 trial.

Prior to trial, the defendant filed a motion to continue which was granted. On January 13, 2009, the defendant withdrew his not guilty plea and entered a plea of guilty to the charge under State v. Crosby, 338 So.2d 584 (La.1976). After the requisite colloquy between the trial court and the defendant, the trial court sentenced the defendant to serve two years at hard labor. The trial court suspended the sentence and placed defendant on two years active probation.

The defendant appeals raising two assignments of error. He asserts that his conviction and sentence should be reversed because: 1) the trial court erred when it concluded that the arresting officers had sufficient reasonable suspicion to |2support an investigatory stop; and 2) the trial court erred when it held that the arresting officers’ search of the defendant’s closed fist was a permissible weapons search.

Officer Gerald Young was the only witness to testify at the defendant’s suppression hearing. Officer Young stated that on the night of October 2, 2008, he and his partner were driving down Iberville Street towards its intersection with Crozat Street when they spotted a man walk briskly down a driveway towards Iberville Street. He observed the defendant slow down, lower his head, and proceed off to his right towards several parked cars after the defendant noticed Officer Young. Officer Young further testified that he observed the defendant crouch down behind one of the vehicles.

Considering the defendant’s behavior suspicious, the officers stopped their vehicle and approached the defendant in order to speak with him. After approaching the defendant, Officer Young noticed that the defendant was still crouched down behind a vehicle with his hands out in front of him. The officers asked the defendant to stand up. Officer Young testified that he noticed that the defendant’s left hand was tightly closed after he stood up. Officer Young then asked the defendant to open his left hand. When the defendant opened his hand a white rock-like substance wrapped in plastic fell to the ground.

Suspecting the substance to be crack cocaine, Officer Young’s partner handcuffed the defendant, told him he was under arrest, and advised him of his rights while Officer Young retrieved the suspected contraband. Shortly thereafter, | ¡¡Sergeant Merlin Bush arrived at the scene. Officer Young and Sergeant Bush then conducted a field test on the evidence, and it tested positive for cocaine. The officers then transported the defendant to lockup while the cocaine was placed on the evidence books. Lastly, Officer Young identified the defendant in court as the man he and his partner observed on the night of the incident.

ASSIGNMENT OF ERROR NUMBER 1

The defendant’s first argument is that the trial court erred when it found that the arresting officers possessed sufficient reasonable suspicion to conduct an investigatory stop. For Fourth Amendment purposes, a seizure occurs either with the application of physical force to an individual or by the individual’s submission to the assertion of official authority. California v. Hodari D., 499 U.S. 621, 626-27, 111 S.Ct. 1547, 1551, 113 L.Ed.2d 690 (1991). Under Louisiana’s slightly broader definition of the term, a seizure may also occur “when the police come upon an individual with such force that, regardless of the individual’s attempts to flee or elude the encounter, an actual stop of the individual is virtually certain [to occur].” State v. Tucker, 626 So.2d 707, 712 (La. 1993). However, under either definition, the police remain free to exercise “the same right as any citizen to approach an individual and ask a few questions.” State v. Jackson, 2000-3083, p. 3 (La. 3/15/02), 824 So.2d 1124, 1126.

In State v. Thompson, 2002-0333, pp. 5-6 (La. 4/9/03), 842 So.2d 330, 335, the Louisiana Supreme Court addressed the standard for determining whether an officer has reasonable suspicion to conduct an investigatory stop:

14Reasonable suspicion for an investigatory stop is something less than probable cause and must be determined under the specific facts of each case by whether the officer had sufficient knowledge of particular facts and circumstances to justify the infringement on individual’s right to be free from governmental interference. State v. Varnell, 410 So.2d 1108 (1982); State v. Bickham, 404 So.2d 929 (La.1981); State v. Blanton, 400 So.2d 661 (La.1981); State v. Ault, 394 So.2d 1192 (La.1981).... In determining whether or not reasonable cause exists to temporarily detain a person, the totality of the circumstances, “the whole picture,” must be considered. State v. Belton, 441 So.2d 1195, 1198 (La.1983) (citing United States v. Cortez, 449 U.S. 411, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981).)

When determining whether police officers have a “particularized and objective basis” for conducting an investigatory stop, reviewing courts “must look at the ‘totality of the circumstances’ of each case,” a process which “allows officers to draw on their own experience and specialized training to make inferences from and deductions about the cumulative information available to them that ‘might well elude an untrained person.’ ” United States v. Arvizu, 534 U.S. 266, 273, 122 S.Ct. 744, 750-51, 151 L.Ed.2d 740 (2002)(quoting United States v. Cortez, 449 U.S. 411, 417-18, 101 S.Ct. 690, 695, 66 L.Ed.2d 621 (1981)); State v. Johnson, 2001-2081 p. 3 (La. 4/26/02), 815 So.2d 809, 811 (“The assessment by a reviewing court of the cumulative information known to the officers avoids a ‘divide-and-conquer analysis’ by which the whole becomes less than the sum of its parts because each circumstance examined individually may appear ‘readily susceptible to an innocent explanation.’ ”) (quoting Arvizu, 534 U.S. at 274, 122 S.Ct. at 751.).

In the present case, the defendant first caught the officers’ attention when they spotted him walking briskly down a driveway towards the street and raised suspicion when he crouched down behind a car. Even when approached by the 15officers he did not stand up, but rather remained crouched behind the car with his hands out in front of him.

The trial court’s January 7, 2009, judgment indicates that it relied upon the Louisiana Supreme Court’s decision in State v. Sylvester, 2001-0607 (La.9/20/02), 826 So.2d 1106, as support for denying the defendant’s motion. In Sylvester, the defendant and his friend first caught the attention of the officers because they sat with their heads bent down in a car stopped in an area targeted by citizen complaints of drug activity. After the Sylvester defendant and his companion spotted the officers, the two men then began fumbling on the floor board of the car as if they were hiding something.

At the approach of the officers, the defendant then jumped from the car with his fist closed. The officers ordered the defendant to turn around and put his hands on the car. After the defendant complied, one of the officers walked up behind the defendant, grabbed him by the belt, and ordered him to open his fist. The defendant complied and a syringe fell out of his hand. This Court reversed the defendant’s conviction, ruling that the police lacked reasonable suspicion to conduct an investigatory stop. State v. Sylvester, 2000-1522 (La.App. 4 Cir. 2/7/01), 781 So.2d 616.

The Supreme Court granted writs, reversed, and concluded that the foregoing circumstances justified the officers’ investigatory stop of the defendant. Considering Sylvester, we cannot find that the trial court erred when it determined the investigatory stop of the defendant was justified.

^ASSIGNMENT OF ERROR NUMBER 2

In his second assignment of error, the defendant asserts that the trial court erred when it held that the arresting officers’ search of the defendant’s closed fist was a permissible weapons search. In State v. Jones, 99-0861, p. 12 (La.App. 4 Cir. 6/21/00), 769 So.2d 28, 38, this Court explained that, in order to justify a frisk of a suspect for weapons following an investigatory stop, a police officer does not need to be absolutely certain that the suspect is armed, but the facts must justify a belief that the officer’s safety or that of others is in danger, citing State v. Williams, 98-3059, p. 4 (La.App. 4 Cir. 3/3/99), 729 So.2d 142, 144. The pertinent question is not whether the officer subjectively believes he is in danger, or even whether he articulates a subjective belief during his testimony, but rather it is an objective test of whether a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger. See State v. Dumas, 2000-0862, pp. 2-3 (La. 5/4/01), 786 So.2d 80, 81-82.

Further, in Sylvester, the Louisiana Supreme Court observed that weapons can be concealed inside a fist. 2001-0607, p. 6, 826 So.2d at 1109, citing U.S. v. Moore, 235 F.3d 700, 704 (1st Cir.2000). In Sylvester, the Louisiana Supreme Court held that an officer’s concern for his safety can justify ordering a suspect to open a clenched fist. Id., citing State v. Williams, 249 Neb. 582, 544 N.W.2d 350, 353 (1996) (“If ... a police officer is justified in conducting a protective weapons search based upon the officer’s reasonable belief that a suspect may be armed and |7dangerous, such a weapons search would necessarily include the right to search a clenched fist.”).

Again, based on the testimony of Officer Young and the Sylvester opinion, we do not find the trial court erred in finding the search permissible. For the reasons discussed, we affirm.

AFFIRMED.