author: CLARENCE E. McMANUS, Judge.

text:
    STATE of Louisiana v. Rhonda K. OLIVER.
    Nos. 03-KA-416, 09-KH-710, 09-KH-711.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 29, 2009.
    Rehearing Denied Jan. 26, 2010.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Andrea F. Long, Assistant District Attorneys, Gretna, Louisiana, for Plaintiff/Appellee.
    Bruce G. Whittaker, Attorney at Law, Louisiana Appellate Project, New Orleans, LA, for Defendant/Appellant.
    Rhonda K. Oliver, Saint Gabriel, Louisiana, In Proper Person.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., CLARENCE E. McMANUS and WALTER J. ROTHSCHILD.
   CLARENCE E. McMANUS, Judge.

|2In this appeal, we consider defendant’s allegations of error raised in her pro se brief, which were not considered in defendant’s original appeal. In addition we consider the issues raised in defendant’s two writ applications, no. 09-KH-710 and no. 09-KH-711. For the reasons that follow, we find no merit to defendant’s allegations of error and re-affirm defendant’s conviction and sentence. We further deny defendant’s applications for writs.

PROCEDURAL HISTORY

Defendant, Rhonda Oliver, was found guilty by a jury of theft of goods valued at $100.00 or more, but less than $500.00, a violation of LSA-R.S. 14:67.10. On October 10, 2001, the trial court sentenced her as a habitual offender to 20 years imprisonment at hard labor without benefit of probation or suspension of sentence. State v. Oliver, 03-416 (La.App. 5 Cir. 9/30/03), 857 So.2d 1227. This Court affirmed defendant’s conviction and sentence on appeal. Id. In its opinion, this Court ruled on defendant’s counseled assignments of error, but did not address the two additional assignments in defendant’s -pro se brief, filed on July 18, 2003. Defendant filed an untimely writ application in the Louisiana Supreme Court. The Supreme Court treated the writ as an application for post-conviction relief and denied it. State ex rel. Oliver v. State, 04-2139 (La.5/20/05), 902 So.2d 1042.

|s0n August 1, 2008, defendant filed with this Court pro se writ application no. 08-KH-639, in which she challenged a district court ruling denying her motion to correct an illegal sentence. In that writ application defendant claimed, in part, that this Court had failed to consider the supplemental 'pro se assignments in her original appeal. This Court consolidated writ no. 08-KH-639 with writ no. 08-WR-901, pertaining to a Cordero review of this Court’s rulings on several writs defendant filed prior to May 21, 2007. Thereafter, this Court granted the consolidated writ in part, recognizing that it had failed to consider defendant’s timely filed pro se assignments of error in its original appeal opinion, and allowing appellate review of those allegations that defendant had raised in her pro se appellate brief. State ex rel. Oliver v. State, 08-WR-901 C/W 08-KH-639, (La.App. 5 Cir. 3/18/09)(unpublished writ), order issued (La.App. 5 Cir. 4/29/09).

In addition, on August 25, 2009, relator filed two pro se writ applications, no. 09-KH-710 and no. 09-KH-711. By order dated September 21, 2009, these writ applications were consolidated with this appeal for review.

FACTS

The facts of this case are taken from this Court’s original opinion:

Rubystein Goins is a sales associate at Sears Oakwood in Jefferson Parish. On February 8, 2001, at approximately 5:30 p.m., Ms. Goins was working in the bedding department located on the second floor of the store adjacent to the house ware department. She was approached by a customer, later identified as Rhonda Oliver, and the customer wanted to return a Foreman Grill and a mixer. According to Ms. Oliver, she had purchased these two items at Sears Clear-view, but she did not have a receipt.

According to store policy, Ms. Goins issued a credit for the returned items in the form of a Sears Gift Card, which required that any purchases made with the card were to be made at a Sears store. The card was issued for the sum of approximately $400, according to Ms. Goins.

Ms. Goins later testified that she was suspicious of Ms. Oliver because of the return of two major appliances that were ^unaccompanied by a receipt. Because of her suspicions, Ms. Goins notified Joseph Bernard, the store’s safety asset coordinator. Ms. Goins relayed to Mr. Bernard an account of the return and a description of the customer. At the time of the advisory, Mr. Bernard was located in the store’s surveillance camera room where he was able to observe various locations in and outside the store. Mr. Bernard alerted the security manager, Walter Dominique. The two men watched Ms. Oliver on the surveillance cameras. Ms. Oliver was observed leaving the house ware department, going to the first floor by escalator, and exiting the store. At this time, she was carrying two bags, each containing a juicer.

Once outside the store, Ms. Oliver walked to a white vehicle parked in the adjacent lot. She placed one bag of merchandise on the ground and the second bag of merchandise in the white car. She removed the juicer from the bag that was located in the vehicle and left the juicer in the vehicle. She tore the bag and then crumpled it and placed this empty bag inside the bag containing the juicer that was located on the ground. Thereafter, Ms. Oliver returned to the store with the bagged juicer which also contained the empty bag. Ms. Oliver again returned to the house ware department.

As Mr. Bernard and Mr. Dominique watched on surveillance cameras, Ms. Oliver walked to the corner of the house ware department, removed a sign from the merchandise, and retrieved another boxed juicer. Ms. Oliver now had two juicers in bags and one of the bags was torn. She asked Ms. Goins for a new bag in order to replace the torn one. Ms. Oliver presented the sales associate with a receipt, which indicated that two juicers had been purchased that day for $179.99 each, using a gift card.

Using the previously taken path, Ms. Oliver left the department, stepped onto the escalator to reach the first floor, and walked in the direction of the exit to the parking lot. Mr. Dominique confronted Ms. Oliver before she exited the store. Ms. Oliver asked Mr. Dominique whether she had done something wrong, and Mr. Dominique asked her to accompany him to the security office. Ms. Oliver did so and she was questioned about the newly acquired juicer. Ms. Oliver told Mr. Dominique she had purchased the juicer; however, she was not able to produce a receipt. Jefferson Parish Sheriffs Office was called and an officer arrived at the scene. Ms. Oliver agreed to a search of her vehicle. Two juicers were seized from the vehicle. The third juicer was returned to the store. [] That item was photographed and returned to the sales shelf. Thereafter, Ms. Oliver was arrested and charged with theft.

¡¿State v. Oliver, 03-416 at 2-5, 857 So.2d at 1228-29.

APPEAL

In her first pro se assignment of error, the defendant alleges that the trial court erred by allowing one of the items seized from the appellant[’]s car during the unlawful search to be admitted before the jury throughout the trial. Defendant argues the improperly admitted evidence, regarding a “third juicer” or “other juicer,” was seized in an unlawful search of her car. The State responds that defendant is not entitled to relief because she failed to preserve the issue for appeal.

Defendant filed a pre-trial motion to suppress evidence, but the record does not indicate that the motion was ever heard. State v. Oliver, 03-416 at 2, 857 So.2d at 1228. A defendant waives all pending motions by permitting trial to proceed without raising the issue that his pretrial motions were neither heard nor ruled on. State v. Fletcher, 02-707, p. 5 (La. App. 5 Cir. 12/30/02), 836 So.2d 557, 559, writ denied, 03-0409 (La.10/10/03), 855 So.2d 334.

A review of the trial proceedings reflects that there was mention throughout the trial of all three juicers involved in the incident. Even defense counsel, in his opening statement, referred to the juicer defendant put in her car. Defendant did not object to any references to the juicers until the testimony of Walter Dominique, the State’s last witness. Under LSA-C.Cr.P. art. 841, “[a]n irregularity of error cannot be availed of after verdict unless it was objected to at the time of occurrence.”

During Mr. Dominique’s testimony, defendant objected to the mention of items seized from her vehicle after she was apprehended. Specifically, the prosecutor asked Mr. Dominique what, if anything, he saw in defendant’s vehicle during his investigation of the incident. Mr. Dominique responded, “There were several items of Sears | (¡merchandize [sic] that had Sears tags on it, mostly small appliances like mixers, George Foreman Grills.” Defense counsel objected and stated, out of the jury’s hearing,

My objection is that they go out to the car and they find numerous items other than the juicers, none of which are stolen, although the report tries to infer that there’s something illegal or stolen about it. To my knowledge, it is not the subject of this trial, so the inference is that perhaps there’s something illegal and improper about these items being in the car, which is what the report basically intimates. Judge, it just doesn’t come in because it’s not the subject of this trial. It’s bringing in other evidence. And if it is not, then what’s the purpose of bringing it in? If he’s going to say he went out and recovered one juicer because that’s all there could have been out there since she brought back one with her that was already paid for, but these other items are paid for as far as we know.

The trial judge ordered an evidentiary hearing, out of the jury’s presence, regarding whether the search of defendant’s vehicle in the parking lot of Oakwood Mall was lawful, and consequently, whether the evidence found in the car was admissible. Mr. Dominique testified he was present when the evidence was located in defendant’s car. Some of it was in the passenger area of the car, and some of it was in the trunk. He looked through the car’s windows and saw some of the items. Mr. Dominique saw defendant hand her car keys to a deputy, and then officers searched the vehicle. Mr. Dominique said he did not search the car himself, nor did he seize any items from the car. He testified all of the property taken from the car was photographed and turned over to the Jefferson Parish Sheriffs Office. The only item the store kept was “the last juicer when she came in the store and picked it up and put it in the bag.” Mr. Dominique further testified that he did not know whether police seized the items from the car before or after defendant signed a “consent to search” form.

The judge ruled:

I’m not going to allow this evidence before the jury. I do not find that the constitutionality of the search has been established through this witness. The search was not one of his own. There’s a question as to when the consent was given and under what circumstances and that must be established by the police officer. I have not ruled that it is inadmissible. I am ruling that it is not by this |7witness. I further find that his presence at the car was provoked by the police who were on the way out to search the vehicle. Had he gone out on his own and viewed it through that window, I would have allowed it, but he went out with the police officers who had obtained consent presumably by this witness — I mean by the defendant. Until such time as that is established, that evidence will not be admitted before the jury, and the defense’s objection is sustained.

At the conclusion of the hearing, the jury returned to the courtroom, and the judge instructed them to “disregard any testimony by [Mr. Dominique] of items that he viewed inside the defendant’s vehicle.” The prosecutor continued questioning Mr. Dominique regarding the last juicer defendant picked up in the store. Mr. Dominique testified that he photographed the “third juicer” and put it back on the sales floor. He stated that the “other juicer” (assumedly the second one in defendant’s possession when Mr. Dominique stopped her) was taken by the police department. Defendant did not object to that testimony, nor did she object to the admission of State’s Exhibit 3, a photograph of the juicer that Mr. Dominique returned to the sales floor. As the judge ordered, the State did not attempt to elicit any further testimony regarding the search of the car. The jury did not hear any testimony — either before or after defendant’s objection — about the seizure of a juicer from defendant’s vehicle.

Based on the foregoing, defendant fails to show the trial court erred. This allegation of error has no merit.

In her second pro se allegation of error defendant argues that her conviction was obtained in violation of the equal protection clause of the Louisiana Constitution, Article 1 § 3. Defendant argues LSA-R.S. 14:67.10 is unconstitutional because it establishes different grades of penalties for the theft of goods from merchants than the general theft statute, LSA-R.S. 14:67, does for theft from other businesses and private persons. She points out that under LSA-R.S. 14:67, the $179.00 theft for which she was prosecuted would have been classified as a misdemeanor; and that under LSA-R.S. 14:67.10, she was charged with a felony. Consequently, she was subject to an enhanced sentence as a [shabitual offender. The State responds that the Louisiana Supreme Court has addressed this issue, and has found that LSA-R.S. 14:67.10 does not violate equal protection.

A statute is presumed constitutional and the burden of proving a claim of unconstitutionality rests upon the party attacking the statute. State v. Interiano, 03-1760, p. 4 (La.2/13/04), 868 So2d 9, 13. The constitutionality of a statute cannot be raised for the first time on appeal; it must first be presented in the trial court. Williams v. State, Dept, of Health and Hospitals, 95-0713, p. 4 (La.1/26/96), 671 So.2d 899, 901; State v. Miekel, 07-47, p. 15 (La.App. 5 Cir. 5/29/07), 961 So.2d 516, 526, writ denied, 07-1422 (La.1/7/08), 973 So.2d 732. A party contesting the constitutionality of a statute has a three-tiered burden: 1) the presentation must be made in the trial court; 2) the claim of unconstitutionality must be specially pleaded; and 3) the grounds for the claim must be particularized. Williams, 95-0713 at 4-5, 671 So.2d at 902; Miekel, supra. In this case, defendant did not raise the constitutionality issue in the trial court. Accordingly, the question of constitutionality is not properly before this Court and should not be addressed. See State v. Miekel, 07-47 at 16, 961 So.2d at 526-27.

Defendant’s argument also fails on the merits. At the time of defendant’s offense, LSA-R.S. 14:67.10 B(2) provided that theft of goods valued at $100.00 or more, but less than $500.00, was a felony punishable by imprisonment, with or without hard labor, for not more than two years. Under LSA-R.S. 14:67 B(3), a misappropriation or taking amounting to less than $300.00 was a misdemeanor punishable by imprisonment for up to six months. In State v. Fleury, 01-0871 (La.10/16/01), 799 So.2d 468, the Louisiana Supreme Court, under facts similar to those in the instant case, rejected the defendant’s argument that LSA-R.S. 14:67.10 is ^unconstitutional. For the reasons expressed by the supreme court in Fleury, the sentencing scheme of LSA-R.S. 14:67.10 does not violate equal protection. This pro se assignment of error lacks merit.

WRIT APPLICATIONS

The instant writ applications originated from a July 9, 2008 district court ruling denying relator’s “Motion to Correct Illegal Sentence/Motion Requesting Retroactive Application of Recent Enactment of LSA-R.S. 14:67.10(2).” In her motion, relator complained she was convicted and sentenced as a felon under the version of LSA-R.S. 14:67 B(2) in effect at the time of her offense. That subpart has since been amended, and the theft of which relator was convicted would now be a misdemeanor-grade offense. Under the current version of the statute, relator argued, she could not be sentenced as a habitual offender. Relator moved the district court to apply the more recent version of the statute to her case retroactively. Relator also argued that this Court had failed to rule on the pro se assignments of error she filed with her original appeal.

In her prior pro se writ application, no. 08-KA-639, relator made two claims: 1) the sentencing amendment to LSA-R.S. 14:67.10 B(2) should be applied retroactively to her 2001 sentence, and 2) this Court failed to consider her supplemental pro se assignments in her original appeal. In short, relator argued she was entitled to retroactive application of the revised sentencing provision because her sentence was not final. She claimed her sentence was not final because this Court failed to rule on the issues she raised in her pro se supplemental brief. As stated earlier, this court granted |tn08-KH-639 c/w 08-WR-901 and set aside the trial court’s ruling, and provided for docketing of defendant’s pro se allegations of error.

When it vacated the district court’s July 9, 2008 ruling, the writ panel did not address the merits of relator’s retroactivity claim. We believe that the writ panel intended to refer that claim to the merits of relator’s pro se appeal assignments.

In the current two writ applications, relator points out that there is now no ruling on her motion to correct illegal sentence. She apparently wants this Court to rule in her favor on the merits of her retroactivity claim, and to order the district court to cany out such ruling. In order to reach the merits of the retroactivity claim, we recognize the district court’s ruling of July 9, 2008, denying retroactive application of the sentencing changes to LSA-R.S. 14:67.10 B(2).

Relator committed the offense at issue on February 8, 2001. The theft involved goods valued at $179. At that time, LSA-R.S. 14:67.10 B(2) provided:

When the misappropriation or taking amounts to a value of one hundred dollars or more, but less than a value of five hundred dollars, the offender shall be imprisoned, with or without hard labor, for not more than two years or may be fined not more than two thousand dollars, or both.

Relator’s crime was thus categorized as a felony.

The theft of goods statute was amended in 2006 so that LSA-R.S. 14:67.10 B(3) now provides, in pertinent part, “When the misappropriation or taking amounts to less than a value of three hundred dollars, the offender shall be imprisoned for not more than six months or may be fined not more than five hundred dollars, or both.” As relator points out, theft of goods valued at $179.00 is a misdemeanor under the current version of the statute.

It is well established that the applicable sentencing scheme is the one in effect at the time the offense is committed. State v. Sugasti, 01-3407, p. 4 (La.6/21/02), 820 So.2d 518, 520; State v. Bellow, 08-259, p. 20 (La.App. 5 Cir. 7/29/08), 993 So.2d 307, 318, writ denied, 08-2109 (La.4/13/09), 5 So.3d 162. The Louisiana Supreme Court has held that the “mere fact that a statute may be subsequently amended, after the commission of the crime, so as to modify or lessen the possible penalty to be imposed, does not extinguish liability for the offense committed under the former statute.” State v. Narcisse, 426 So.2d 118, 130 (La.1983), cert. denied, 464 U.S. 865, 104 S.Ct. 202, 78 L.Ed.2d 176 (1983). Relator points to nothing in the enacting legislation or in the amended statute that indicates the new sentencing provisions should be applied to her retrospectively. Based on the foregoing, we deny defendant’s applications for writs.

For the above discussed reasons, we affirm defendant’s conviction and sentence. We further deny relief in writ applications no. 09-KH-710 and no. 09-KH-711.

CONVICTION AND SENTENCE AFFIRMED; APPLICATIONS FOR WRITS DENIED.

      . State v. Cordero, 08-1717 (La.10/3/08), 993 So.2d 203.

      . The surveillance tape from Sears (State’s Exhibit 1) shows defendant put one juicer in her car, and that she was carrying two juicers when she was apprehended by Mr. Dominique. The trial testimony of the Sears employees also indicates defendant had two juicers with her when she was stopped by Mr. Dominique, and that she was seen placing only one juicer in her vehicle. There seems to have been some confusion about this at trial. During a bench conference, both the judge and defense counsel stated that they understood there was one juicer in the car and two with defendant. But the prosecutor disputed that, stating two juicers were seized from the car. The prosecutor’s assertion does not seem to be supported by the evidence.

      . Since defendant, in her second pro se assignment, challenges the constitutionality of a state statute, this court sent notice by certified mail to the Louisiana Attorney General’s Office in accordance with LSA-R.S. 13:4448.

      . The defendant in Fleury argued LSA-R.S. 14:67.10 is discriminatory on its face because it provides classifications based on the victim's status, distinguishing between theft of goods from a merchant and theft from another type of business or an average citizen. The Supreme Court rejected the defendant's argument, reasoning that the dissimilar punishments based on the status of the theft victim were warranted because a merchant is more affected by a particular type of theft, i.e., shoplifting, than are other businesses or individuals. Fleury, 01-0871 at 8, 799 So.2d at 473-74. The defendant in Fleuiy also argued that LSA-R.S. 14:67.10 does not further an appropriate state interest because it does not protect other businesses from theft to the extent that it protects retail merchants. The Supreme Court rejected that argument too, noting that the greater penalties under LSA-R.S. 14:67.10 reflect “the legislature's desire to address a particular social evil, shoplifting.” Fleury, 01-0871 at 10, 799 So.2d at 475.


source: Caselaw Access Project

author: JUDE G. GRAVOIS, Judge.

license: Public Domain

text:
    Donna PITTMAN, Wife of Don Velez v. Don VELEZ.
    No. 09-CA-305.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 29, 2009.

      John J. Lee, Jr., Attorney at Law, Me-tairie, LA, for Plaintiff/Appellant.
    Ernest S. Anderson, Attorney at Law, Slidell, LA, for Defendant/Appellee.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., JUDE G. GRAVOIS, and MARC E. JOHNSON.
   JUDE G. GRAVOIS, Judge.

12In this domestic matter, plaintiff, Donna Velez, filed in the 24th Judicial District Court, Parish of Jefferson, two pleadings against her ex-husband, Don Velez: 1) a Motion for Registration of a support order for modification from Civil District Court, Parish of Orleans, pursuant to LSA-C.C.P. art. 2786, and 2) a Motion to Increase Child Support. In response thereto, Mr. Velez filed an Exception of Lis Pendens, arguing that Mrs. Velez had pending at that time in the Orleans Parish proceeding a prior-filed almost identical Motion to Increase Child Support. The trial court ultimately granted Mr. Velez’s Exception of Lis Pendens, dismissing Mrs. Velez’s Motion to Increase Child Support. Mrs. Velez appeals. For the reasons that follow, we affirm.

FACTS AND PROCEDURAL BACKGROUND

The pleadings in the record show that the parties were divorced on June 21, 2006 in the proceeding entitled “Donna Pittman, wife of Don Velez versus Don Velez,” No. 2006-156 of the docket of the Civil District Court for the Parish of |sOrleans (“the Orleans Parish proceeding”). A Consent Judgment was rendered and signed on June 21, 2006 in the Orleans Parish proceeding granting to the parties joint custody of the two children of their marriage and ordering Mr. Velez to pay child support to Mrs. Velez.

On September 21, 2007, Mrs. Velez filed a Motion to Increase Child Support and For Past Due Child Support in the Orleans Parish proceeding, which Motion was set for a hearing on November 6, 2007. The parties appeared for the hearing in the Orleans Parish proceeding on November 6, 2007, but the matter was continued on that date by the trial court until April 21, 2008.

On November 19, 2007, just thirteen days after the hearing on her Motion in the Orleans Parish proceeding was continued, Mrs. Velez filed another almost identical Motion to Increase Child Support in the 24th Judicial District Court, Jefferson Parish. This proceeding in Jefferson Parish was assigned Civil Case No. 653-301 (“the Jefferson Parish proceeding”). On that same date, Mrs. Velez also filed in the Jefferson Parish proceeding a separate Motion to Register the previously obtained support order from the Orleans Parish proceeding for modification in the Jefferson Parish proceeding.

On November 28, 2007, the Jefferson Parish Clerk of Court’s Office sent the parties notice that a Hearing Officer Conference would be held in the Jefferson Parish proceeding on December 20, 2007. This notice referenced only Mrs. Velez’s Motion to Increase Child Support.

On December 14, 2007, Mr. Velez filed an Exception of Lis Pendens, together with a memorandum in support thereof, in the Jefferson Parish proceeding, asserting that Mrs. Velez had an identical Motion to Increase Child | ^Support currently pending at that time in the Orleans Parish proceeding, specifically the one that she had filed there on September 21, 2007. Mr. Velez’s pleadings questioned Mrs. Velez’s motivation in filing an identical proceeding in Jefferson Parish, positing that her filing in Jefferson Parish was a “blatant example of unauthorized forum shopping.”

On January 3, 2008, Mrs. Velez filed a Rule to Set Mr. Velez’s Exception of Lis Pendens for an expedited hearing. By judgment rendered on January 16, 2008 and signed on March 7, 2008, the Domestic Commissioner granted Mr. Velez’s Exception of Lis Pendens and dismissed Mrs. Velez’s Motion to Increase Child Support. The judgment did not address Mrs. Velez’s Motion to Register the support order for modification.

On January 16, 2008, Mrs. Velez filed an Objection to the Domestic Commissioner’s Order granting Mr. Velez’s Exception of Lis Pendens. On January 18, 2008, Mrs. Velez filed an Opposition to Exception, arguing that Mr. Velez filed his exception for the purposes of delay only, that he failed to assert any valid ground for contesting the registration of the Orleans Parish support order in Jefferson Parish, and that he failed to allege any basis under which Jefferson Parish would not have jurisdiction over Mrs. Velez’s Motion to Increase Child Support.

On February 15, 2008, after a hearing on the merits of Mr. Velez’s Exception of Lis Pendens was held, the district court judge granted Mr. Velez’s Exception of Lis Pendens. As noted below, this judgment was not signed by the district court judge until January 23, 2009.

The next relevant pleading in the record is a Motion to Reset filed by Mrs. Velez on October 17, 2008, representing that “[t]he matter supported by the lis pendens in Orleans Parish has been dismissed and the mover is prepared to move forward with the motion to increase,” and requesting that a hearing be set on her | ¡-.previously filed Motion to Increase Child Support. The Motion to Reset requested a Hearing Officer Conference and an objection hearing before the district court judge. Exhibits to the record show that the judge in the Orleans Parish proceeding rendered a judgment on June 3, 2008 (but signed on August 18, 2008) dismissing Mrs. Velez’s Motion to Increase Child Support that she previously filed in the Orleans Parish proceeding, with prejudice.

The parties appeared for a Hearing Officer Conference on November 21, 2008. The Hearing Officer found that the January 16, 2008 judgment of the Domestic Commissioner granting Mr. Velez’s Exception of Lis Pendens meant that Mrs. Velez would have to file a new rule to increase child support, and therefore the hearing on Mrs. Velez’s Motion to Increase Child Support scheduled on that date could not (and did not) proceed. On that same day, Mrs. Velez filed an Objection to the Hearing Officer’s recommendation. A hearing before the district court judge was then scheduled for January 23, 2009.

On January 23, 2009, the district court judge signed the judgment that had previously been rendered on February 15, 2008, granting Mr. Velez’s Exception of Lis Pen-dens and dismissing Mrs. Velez’s Motion to Increase Child Support. On that same date, the district court judge also rendered judgment denying Mrs. Velez’s Motion to Reset Hearing for Increase in Child Support. This judgment was signed by the district court judge on January 29, 2009.

Mrs. Velez subsequently filed a Motion for New Trial in the Jefferson Parish proceeding, arguing that the district court’s judgment granting Mr. Velez’s Exception of Lis Pendens was contrary to the law and the evidence in that at the time Mr. Velez first argued his exception to the trial court in February of 2008, she | (¡had voluntarily dismissed her Motion to Increase Child Support in the Orleans Parish proceeding approximately one month earlier. She acknowledged, however, that Mr. Velez had filed a Motion for New Trial in the Orleans Parish proceeding challenging her Motion to Withdraw her Motion to Increase Child Support previously filed in the Orleans Parish proceeding. The Orleans Parish district court later granted Mr. Velez’s Motion for New Trial, and as noted above, subsequently dismissed Mrs. Velez’s Motion to Increase Child Support, with prejudice, by judgment rendered on June 3, 2008 and signed on August 18, 2008.

Mr. Velez opposed Mrs. Velez’s Motion for New Trial in the Jefferson Parish proceeding, arguing that both at the time his Exception of Lis Pendens was filed and when it was argued and granted in the Jefferson Parish proceeding on February 15, 2008, Mrs. Velez’s Motion for Increase in Child Support was still pending in the Orleans Parish proceeding; therefore, the district court judge correctly granted his Exception of Lis Pendens.

On January 29, 2009, judgment was rendered by the district court judge denying Mrs. Velez’s Motion for New Trial. This judgment was signed by the district court judge on February 10, 2009. Mrs. Velez thereupon timely filed this appeal.

ARGUMENTS ON APPEAL

On appeal, Mrs. Velez argues that Mr. Velez failed to timely object to the Motion for Registration, that he consented to the registration of the Orleans Parish support order in Jefferson Parish and waived all objections thereto, and that he failed to file an objection to the support order on the grounds allowed by law. She 17also argues that Mr. Velez filed various pleadings in both the Jefferson Parish proceeding and the Orleans Parish proceeding strictly for the purpose of delay.

Mr. Velez counters on appeal that his Exception of Lis Pendens was properly granted. He argues that the registration procedures of LSA-C.C.P. art. 2785, et seq., were not intended to divest jurisdiction of cases that are currently pending in the rendering court in the circumstances where the obligee (Mrs. Velez) is the very party who initiated a request for modification of support in the rendering court. Mr. Velez further argues that there is no proof that the mandatory requirements for registration of a support order for modification were met, that his Exception of Lis Pendens should be treated as a timely-filed opposition to Mrs. Velez’s Motion for Registration, and that Mrs. Velez’s own actions have caused much of the delay in hearing her Motion to Increase Child Support.

DISCUSSION

Because Mrs. Velez’s arguments are all interrelated, they will be discussed together.

The record shows that Mrs. Velez filed two pleadings in the Jefferson Parish proceeding: a Motion to Register the support order for modification, and a Motion to Increase Child Support. It is clear from reading Mr. Velez’s Exception of Lis Pendens and the memorandum he filed in support thereof that Mr. Velez filed the exception only in response to Mrs. Velez’s Motion to Increase Child Support. The exception does not object to the registration of the child support order, and indeed, Mr. Velez stated at the hearing on February 15, 2008 that he had no objection to the registration of the order.

The statutory scheme for the registration of intrastate support orders for modification is found in Code of Civil Procedure articles 2786 through 2790. | ¡/Those articles contemplate two distinct actions: first, the registering of the support order in the registering court (here, the 24th Judicial District Court), and second, the confirmation of that order by the registering court. The statute contains various procedural requirements that must be met in order for a registered support order to be confirmed. It is only upon confirmation of the registered support order by the registering court that the rendering court (here, Orleans Parish Civil District Court) is divested of jurisdiction to modify the support order. LSA-C.C.P. art. 2786(D). Accordingly, the mere registration of the support order does not empower the registering court to modify the support order until such order is confirmed.

Mr. Velez asserts that he was served with these pleadings on December 8, 2007. He filed his Exception of Lis Pendens on December 14, 2007. An exception of lis pendens is a declinatory exception that must be pleaded prior to the answer and before confirmation of a default judgment. LSA-C.C.P. art. 928. As such, Mr. Velez’s exception was timely filed in this case.

LSA-C.C.P. art. 531 states that when two or more suits are pending in a Louisiana court or courts on the same transaction or occurrence, between the same parties in the same capacities, the defendant may have all but the first suit dismissed by excepting thereto as provided in Article 925.

The test for deciding whether an exception of lis pendens should be granted is to inquire whether a final judgment in the first suit would be res judicata in the subsequently filed suit. Domingue v. ABC Corp., 96-1224 (La.App. 4th Cir.6/26/96), 682 So.2d 246; Bunch v. Schilling Distributing Inc., 589 So.2d 502 (La.App. 3rd Cir.1991). The exception of lis pendens has the same requirements as the exception of res judicata, and is properly granted when the suits involve the same transaction or occurrence between the same parties in the same capacities. Domingue, supra.

IflWarraer v. Carimi Law Firm, 98-613 (La.App. 5 Cir. 12/16/98), 725 So.2d 592, 601.

In this case, the record is clear that at the time the merits of Mr. Velez’s Exception of Lis Pendens was heard in the Jefferson Parish proceeding on February 15, 2008, Mrs. Velez’s original Motion to Increase was still pending in the Orleans Parish proceeding. As of that time, the judge in the Orleans Parish proceeding had not yet ruled on Mr. Velez’s Motion for New Trial following the grant of Mrs. Velez’s ex parte Motion to Withdraw the Motion to Increase Child Support that she had previously filed in the Orleans Parish proceeding.

The record and the parties’ pleadings show that Mrs. Velez filed a Motion to Increase Child Support in the Orleans Parish proceeding a mere two months prior to filing her almost identical Motion to Increase Child Support in the Jefferson Parish proceeding. Moreover, her Motion to Increase Child Support in the Jefferson Parish proceeding was filed a mere thirteen days after the hearing on her similar Motion in the Orleans Parish proceeding was continued. It is accordingly undisputed that at the time Mrs. Velez filed her Motion to Increase Child Support in the Jefferson Parish proceeding, the same parties (Mr. and Mrs. Velez) were involved in two separate suits (the Orleans Parish proceeding and the Jefferson Parish proceeding) involving the same transaction or occurrence in the same capacities (a Motion for Increase of Child Support filed by Mrs. Velez against Mr. Velez). As such, in accordance with the provisions of LSA-C.C.P. art. 531, and the holdings of Do-mingue and Warner, supra, Mr. Velez had the right to have all but the first suit (the Orleans Parish proceeding) dismissed by timely excepting thereto. Since Mrs. Velez’s Motion to Increase Child Support filed in the Orleans Parish proceeding was still pending when she filed her almost identical Motion to |inIncrease Child Support in the Jefferson Parish proceeding, the district court did not err in granting Mr. Velez’s Exception of Lis Pendens.

CONCLUSION

For the reasons set forth above, we affirm the judgment of the district court granting Mr. Velez’s Exception of Lis Pen-dens.

AFFIRMED.

      . The record of the Orleans Parish proceeding is not in evidence in this case, with the exception of Mr. Velez's exhibit 2 that was introduced at the hearing on the Exception of Lis Pendens that took place on January 23, 2009. Accordingly, references to the Orleans Parish proceeding are gleaned from the parties’ pleadings in this record and from their appellate briefs.

      . The judgment from the Orleans proceeding signed on August 18, 2008 that dismissed Mrs. Velez's Motion to Increase Child Support in the Orleans Parish proceeding with prejudice mischaracterizes her motion as one to decrease child support, rather than to increase child support.

      . It is represented in the transcript of the hearing on January 23, 2009 that Mrs. Velez filed a pleading titled as a motion to "withdraw" relative to her pending Motion to Increase Child Support in the Orleans Parish proceeding, rather than a pleading entitled "motion to dismiss.”

      . We note here that Mrs. Velez's reliance on LSA-Ch.C. art. 1306.7, relative to the permissible grounds upon which to object to registration of an intrastate support order, is misplaced. That article is part of the Uniform Interstate Family Support Act, which pertains to the registration of support orders from other states. It does not apply to intrastate support orders.


author: SUSAN M. CHEHARDY, Judge.

text:
    STATE of Louisiana v. Majuangy D. EVANS.
    No. 09-KA-477.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 29, 2009.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Assistant District Attorney, Gretna, LA, for Plaintiff/Appel-lee, The State of Louisiana.
    Gwendolyn K. Brown, Attorney at Law, Baton Rouge, LA, for Defendant/Appellant, Majuangy D. Evans.
    Majuangy D. Evans, Kinder, LA, Defendant/Appellant, In Proper Person.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., SUSAN M. CHEHARDY, and WALTER J. ROTHSCHILD.
   SUSAN M. CHEHARDY, Judge.

| aThis is the second appeal in this matter. The defendant has filed briefs both through counsel and pro se. In the brief by counsel, the defendant seeks review of his sentence as excessive. In the pro se supplemental brief, the defendant argues ineffective assistance of counsel, and also raises search and seizure issues. We affirm the sentence, but remand for correction of patent errors.

FACTS

The facts of the arrest are taken from the record in the first appeal, 02-KA-1108, lodged in this Court as an exhibit to the record in the current appeal. On March 7, 2001, Jefferson Parish Sheriffs Office narcotics detectives Frank Horn and John Pacaccio executed a search warrant at 3725 Marian Street, Apartment # 5, in Jefferson Parish. The warrant was based on statements of an informant who had made a purchase of crack cocaine from a white female’s residence. Agent Horn learned that the resident participated in sales of cocaine with a black male who came to the house regularly to sell crack. The informant had observed a black male cutting up crack cocaine in the residence at the time of the purchase.

The agents approached the apartment, knocked on the door, and announced then' presence, but did not receive an answer. The front door of the residence was barricaded. The police used a ram to open the door, but it only formed a hole in |.,the door. Agent Pacaccio looked through the hole in the door, using his flashlight, and saw a white female. He ordered her to remove the barricade, which was a metal pipe, and she complied. He also saw a black male (later identified as Majuangy D. Evans, the defendant) run from the front room to the bathroom. The resident, her ex-husband, and her two children also were in the residence.

Upon entry Agent Pacaccio went to the bathroom, where he saw the defendant. Agent Horn testified that the toilet seat was up and a coat hanger was “kind of hanging on the toilet.” There was toilet paper in the toilet and it looked as if it had been stirred with the coat hanger. There was no water in the tank of the toilet and the water had been turned off, so the toilet could not flush.

Agent Horn removed the toilet from the floor, turned it upside down, and shook it.

When he did this, a bag containing rocks of cocaine fell out. The defendant was the only one in the bathroom when the agents entered the residence. One of the defendant’s arms was wet. Agent Horn believed he had been reaching into the toilet.

The police seized the plastic bag that had fallen out of the toilet. It contained numerous off-white colored rocks individually packaged into “baggies.” These later were determined to be crack cocaine that belonged to the defendant. Police also recovered $380 from the defendant’s pocket, in small denominations. The defendant, who was visiting the apartment, was arrested.

PRIOR PROCEEDINGS

On August 28, 2001, Majuangy D. Evans was convicted of violation of La. R.S. 40:967(A), possession of cocaine with intent to distribute. On October 11, 2001, he was sentenced to imprisonment at hard labor for 30 years, without benefit of parole, probation or suspension of sentence. On the same date he was adjudicated a second-felony offender, his original sentence was vacated, and he |4was resenteneed to 45 years’ imprisonment at hard labor without benefit of probation or suspension of sentence.

On appeal this Court affirmed the conviction, but remanded the case to the trial court for rulings on the defendant’s motions to reconsider sentence. State v. Evans, 02-1108, p. 2 (La.App. 5 Cir. 3/11/03), 844 So.2d 111, 112. We held that after disposition of the motions to reconsider, the defendant was authorized to re-lodge his appeal within a specified time. Evans, 02-1108 at 2-3, 844 So.2d at 112-13.

On remand, the trial court denied both motions to reconsider sentence. Thereafter, the trial court resentenced the defendant to 45 years’ imprisonment at hard labor, with the first five years to be served without benefits.

The defendant filed a motion to appeal his sentence in this Court, arguing that his 45-year sentence was excessive. His motion was docketed as a pro se post-conviction writ application, which was denied on a finding that the defendant had failed to raise the claim in his previous appeal. State v. Evans, 03-KH-660 (La.App. 5 Cir. 6/12/03). On August 26, 2008, the defendant filed a writ application with the Louisiana Supreme Court, which transferred it to this Court on October 18, 2008, with instructions to consider it under State v. Cordero, 2008-1717 (La.10/03/08), 993 So.2d 203.

The transferred application was lodged in this Court under case number 08-KH-651, consolidated with number 08-WR-1001. We ordered that the defendant’s motion for appeal, previously treated as a pro se writ application in case number 03-KH-660, be transferred to the district court. We instructed the trial court to grant the defendant’s Motion for Appeal of Sentence, to prepare the record for | dodging in this Court, to appoint an attorney to represent the defendant, and to perform “any other actions that normally occur when an appeal is granted” within a specified time. The trial court granted the defendant’s Motion for Appeal of Sentence on December 15, 2008.

LAW AND ANALYSIS

As mentioned above, the appeal has been briefed by counsel, with a supplemental brief by the defendant pro se. The counseled assignments relate to excessive sentence and whether the trial judge complied with the sentencing mandates. The pro se assignments relate to ineffective assistance of counsel at trial and on the first appeal, and to search and seizure.

COUNSELED ASSIGNMENTS

The assignments of error as briefed by counsel are as follows:

1. The trial court erred by imposing against Mr. Evans an excessive sentence.
2. The trial court erred by failing to comply with the sentencing mandates of La. C. Cr. P. art 894.1 when it sentenced Mr. Evans.
3. The trial court erred by denying Mr. Evans’ motions to reconsider sentence not on the merits of the motions but on the basis that he did not have access to the original sentencing judge’s thought process. The trial court erred by failing to give any type of meaningful consideration to the motions prior to denying them.
4. The trial court erred by denying the motions to reconsider the sentence.

Counseled Assignments Of Error Numbers One And Two

In these assignments, the defendant asserts the trial court erred by imposing an excessive sentence, and by failing to comply with the sentencing mandates of La. C. Cr. P. art. 894.1.

| (iAt the May 15, 2003 hearing on remand, the prosecutor advised the trial court that the case had been remanded for a ruling on two motions to reconsider sentence. Defense counsel asked the court to “take note” of the record and consider the excessiveness of the 45-year sentence. Thereafter, the trial court ruled on the motions and stated, “Okay. The Court has reviewed the record, as well as the Fifth Circuit’s opinion. Not having the benefit of the thought process of the sentencing judge and considering the state’s position, the Court is going to deny both motions.”

The prosecutor then stated, “And Judge, at this time, the state would ask you now to re-sentence him on the original 45 years, and I believe the Fifth Circuit also indicated that to clarify the record, the first five years is without benefit of probation, parole or suspension of sentence.”

Without setting aside the original enhanced sentence, the trial judge resen-tenced the defendant to 45 years imprisonment at hard labor, with the first five years to be served without benefits.

According to this Court’s directive on the first appeal, the trial court was supposed to rule only on the two motions to reconsider sentence. Our opinion did not instruct the trial court to resentence the defendant as a multiple offender, but merely noted a patent sentencing error that it was premature to address on the first appeal.

Had the trial court granted the motions to reconsider, it would have had to resen-tence the defendant. The trial court denied the motions, however. On the first appeal the defendant argued only that there were errors patent on the face of the record. He specifically assigned as error the failure of the trial judge to rule on the motion to reconsider sentence. The defendant did not raise excessive sentence |7or compliance with La. C. Cr. P. art. 894.1 on the first appeal. The defendant argues that his sentence is excessive and that the record does not contain evidence warranting a maximum sentence for his underlying conviction. He contends that the judge focused on the war on drugs and the hazards drugs bring before concluding he had no choice in the matter but to give him the maximum sentence.

The defendant argues that the trial court failed to articulate its reasons for the sentence imposed, and that the record does not indicate a rationale for the court’s harshness. He concludes the court failed to comply with the sentencing mandate of La. C. Cr. P. art. 894.1. The defendant contends the judge did not mention other factors under the sentencing guidelines other than the consideration of the defendant’s criminal history, which included repeated drug offenses. The defendant asserts that having a drug addiction should not have been a factor that warranted a harsher prison term, and he contends the sentence was not particularized to him.

The defendant acknowledges that his 30-year sentence was vacated and the judge imposed a 45-year sentence after finding he was a second felony offender. He asserts that the judge offered no reasons for the sentence except that “the people of Jefferson Parish” did not want someone like the defendant on the streets and that drug crimes were not victimless crimes. He argues these statements failed to comply with the sentencing guidelines of La. C. Cr. P. art. 894.1.

30-Year Sentence

On October 11, 2001, the defendant was sentenced to 30 years’ imprisonment at hard labor for the conviction of possession with intent to distribute cocaine. When sentencing the defendant, the judge noted that the defendant had a prior conviction as a juvenile for armed robbery and a prior conviction for possession of cocaine. The judge noted considerations under | sLa. C. Cr. P. art. 894.1, specifically stating there was an undue risk that the defendant would commit another crime, and that he could not give the defendant a suspended sentence and probation. The court also noted that if the State was correct, the defendant was facing life imprisonment.

In addition, the judge found the defendant in need of correctional treatment, that a lesser sentence would deprecate the seriousness of the act, but stated, “[I]t’s not the act as much as your background that’s your particular problem, Mr. Evans.” The judge then went on to tell the defendant he was “a tool of the Columbian drug lords,” that what the judge had to look at was what the defendant was doing to “all these other people,” that the cocaine trade is not a victimless crime, that the reason “we can’t win the war on drugs” is because “it’s not being fought properly.”

The judge stated he intended to “help those that have a habit and punish those who are using it to make money.” He told the defendant, “You are one of the ones that are spreading it,” and continued, “Considering you are facing life imprisonment if what the D.A. tells me is true, the Court has no choice in this matter but to give you the maximum sentence of 80 years in the Department of Corrections without benefit of probation, parole, or suspension of sentence.”

On November 15, 2001, the defendant filed a “Motion to Reconsider Sentence and Motion for Appeal.” In this motion, the defendant argued that his sentence was excessive in violation of the United States Constitution, the Louisiana Constitution, all applicable statutes, and the Sentencing Guidelines. The motion also alleged that the court failed to adequately consider mitigating circumstances in fixing the jail term or fine and to consider both the statutory and sentencing guidelines. On January 31, 2002, the defendant’s original sentence was vacated, and the defendant was sentenced as a multiple offender.

lain his second appeal, the defendant attacks his original 30-year sentence as excessive. He also argues that the trial judge failed to comply with La. C. Cr. P. art. 894.1 in articulating reasons for the sentence imposed. However, it appears this argument is moot because his 30-year sentence was vacated when the defendant was sentenced as a second felony offender.

We find the claim of excessive sentence as to the vacated 30-year sentence is moot because the original sentence no longer exists. State v. Jenkins, 07-423, p. 8 (La.App. 5 Cir. 10/30/07), 970 So.2d 1166, 1170, writ denied, 07-2243 (La.5/30/08), 983 So.2d 895. See also, State v. Jackson, OS-923, pp. 12-13 (La.App. 5 Cir. 3/28/06), 926 So.2d 72, 79, ivrit denied, 06-1589 (La.1/8/07), 948 So.2d 121; State v. Hanson, 00-1168, p. 4 (La.App. 5 Cir. 12/13/00), 778 So.2d 43, 45.

45-Year Enhanced Sentence

On January 31, 2002, the defendant was sentenced to 45 years’ imprisonment at hard labor for distribution of cocaine as a second-felony offender. The judge noted the sentencing range was 15 to 60 years, and questioned the State regarding prior convictions. The State reported that the defendant was previously convicted of five counts of armed robbery as a juvenile.

When imposing the enhanced sentence, the judge told the defendant:

Mr. Evans, I really wish we could have done this when all these other guys were here in court so at least, if nothing else, you could have served as a bad example.
But, you know, you’re a good example of what happens when you mix guns and narcotics. You have a history of dealing with guns and armed robberies and now you are out dealing narcotics.
You are the kind of person that, with all due respect, the people of Jefferson Parish just don’t want on their streets.
I know that maybe you and some other people think that drugs is [sic] a victimless crime, but it isn’t. I see the victims in court everyday. It’s bad enough that we’ve got some people using drugs, but it’s worse whenj^you have them selling them. My g-uess is, you were selling and using, huh?

The defendant responded, “No, sir.” The judge then stated he remembered the defendant was “the guy that put the stuff in the back of the toilet seat.” After considering the sentencing range and the sentencing guidelines of La. C. Cr. P. art. “894” [sic], the judge sentenced him for distribution of cocaine as a second felony offender to 45 years imprisonment at hard labor without benefit of probation or suspension of sentence.

Defense counsel then made an oral motion to reconsider the sentence and stated he would supplement the motion in writing. The judge said he would “take it up” when he filed it. The record does not show the oral motion was ever supplemented by a written motion.

On remand, after defendant’s motions to reconsider were denied, defendant was re-sentenced to the same 45-year sentence at hai*d labor, except the restriction of benefits was different. The defendant’s original enhanced sentence was imposed without benefit of probation or suspension of sentence. On remand, the defendant received an enhanced sentence to be served without benefits for the first five years.

Because the motion to reconsider did not set forth specific grounds on which the motion was based, we limit our analysis of the 45-year sentence to a review for constitutional excessiveness. La. C. Cr. P. art. 881.1 requires that a motion to reconsider set out the “specific grounds” upon which the motion is based in order to raise an objection to the sentence on appeal. State v. Mims, 619 So.2d 1059, 1059-1060 (La.1993). If the defendant does not allege any specific ground for excessiveness or present any argument or evidence not previously considered by the court at original sentencing, the defendant is relegated to having the appellate |n court consider the bare claim of constitutional excessiveness. Id.; see also, State v. Carter, 07-270, p. 10 (La.App. 5 Cir. 12/27/07), 976 So.2d 196, 202.

We note further that on remand the trial court resentenced the defendant without first vacating the original enhanced sentence. After the resentencing, defense counsel did not file a motion to reconsider or object to the new enhanced sentence. Where a new sentence has been imposed following vacation of a prior sentence, the defendant is required to file a new motion for reconsideration of sentence in the trial court, in order to preserve appellate review of the newly-imposed sentence. State v. Emerson, 04-0156, pp. 6-7 (La.App. 1 Cir. 10/29/04), 888 So.2d 975, 979-80, writ denied, 05-0089 (La.4/22/05), 899 So.2d 557. The court cannot assume that the defendant’s objections to the earlier sentence are equally applicable to the new sentence imposed. Id.

Regardless of which enhanced sentence is considered, the defendant either did not file a motion to reconsider or made an oral motion and failed to state specific grounds. Thus, our consideration of the enhanced sentence is limited to a review for constitutional excessiveness.

The defendant argues that the trial court failed to comply with La. C. Cr. P. art. 894.1 by articulating justification for the sentence imposed. Article 894.1(C) requires the trial judge to state for the record the considerations taken into account and the factual basis when imposing the sentence. State v. Sanders, 98-855, p. 5 (La.App. 5 Cir. 5/19/99), 734 So.2d 1276, 1279, writ denied, 99-1980 (La.1/7/00), 752 So.2d 175. When there is an adequate factual basis for the sentence contained in the record, however, the trial court’s failure to articulate every circumstance listed in La. C. Cr. P. art. 894.1 does not require a remand for resentencing. Id.

|12As noted above, the defendant failed either to file a motion to reconsider or to object to the new enhanced sentence imposed on remand. Nor did the defendant’s oral motion to reconsider the previous enhanced sentence raise failure to comply with La. C. Cr. P. art. 894.1.

An argument concerning the trial court’s non-compliance with Article 894.1 falls under the category of statutory excessiveness. See State v. Lagarde, 07-123, p. 17 (La.App. 5 Cir. 5/29/07), 960 So.2d 1105, 1118, writ denied, 07-1650 (La.5/9/08), 980 So.2d 684. Therefore, the defendant failed to preserve this issue for appeal. See State v. Haywood, 00-1584, p. 17 (La.App. 5 Cir. 3/28/01), 783 So.2d 568, 581.

On remand the defendant received the same 45-year sentence, except for the restriction of benefits. We find that the 45-year sentence is not constitutionally excessive.

The imposition of excessive punishment is prohibited by both the Eighth Amendment to the United States Constitution and Article I, § 20 of the Louisiana Constitution. State v. Lawson, 04-334, p. 6 (La.App. 5 Cir. 9/28/04), 885 So.2d 618, 622. A sentence is constitutionally excessive if it is grossly out of proportion to the seriousness of the offense or is nothing more than a purposeless and needless infliction of pain and suffering. State v. Lobato, 603 So.2d 739, 751 (La.1992); Lawson, 04-334 at 6, 885 So.2d at 622. A sentence is grossly disproportionate if, when the crime and punishment are considered in light of the harm done to society, it shocks the sense of justice. Id.

The trial court is afforded wide discretion in determining sentences and a court of appeal will not set aside a sentence for excessiveness if the record supports the sentence imposed. Lawson, 04-334 at 6, 885 So.2d at 622. See also La. C. Cr. P. art. 881.4(D).

| lsAn appellate court considers three factors in reviewing a trial court’s sentencing discretion: 1) the nature of the crime, 2) the nature and background of the offender, and 3) the sentence imposed for similar crimes by the same court and other courts. State v. Stewart, 03-920, p. 16 (La.App. 5 Cir. 1/27/04), 866 So.2d 1016, 1027-28, writ denied, 04-0449 (La.6/25/04), 876 So.2d 832.

In March 2001, when the defendant committed the underlying offense, La. R.S. 40:967(B)(4)(b) provided that on conviction of possession with intent to distribute cocaine conviction, the defendant shall be sentenced to a term of imprisonment at hard labor for not less than five years nor more than thirty years, with the first five years of the sentence being without benefit of parole, probation, or suspension of sentence. The statute provided for discretionary imposition of a fine of not more than fifty thousand dollars. Thus, as a second felony offender, the defendant faced a possible sentencing range of 15 to 60 years imprisonment. La. R.S. 15:529.1(A)(l)(a). The defendant received a 45-year sentence.

Reviewing other similar cases, we find the sentence is supported by comparison. In State v. Calway, 98-2061, p. 6 (La.App. 4 Cir. 11/17/99), 748 So.2d 1205,1209, writs denied, 00-3396 (La.8/24/01), 795 So.2d 342 and 04-1260 (La.3/18/05), 896 So.2d 998, on a conviction for possession of cocaine with intent to distribute the defendant was sentenced to 60 years at hard labor — the maximum sentence under the statutes — after being adjudicated a second-felony offender. The appellate court found the trial court’s reasons adequately supported the sentence and sufficiently complied with La. C. Cr. P. art. 894.1. Calway, 98-2061 at 7, 748 So.2d at 1209.

In Calway the trial court had noted that the defendant had six prior convictions that spanned over a 20-year period; that the defendant’s criminal history indicated a need for correctional treatment in a custodial environment; that 114if the defendant was not incarcerated, he would return to a life of crime. The trial court also observed that the defendant was found to be in possession of twenty-three rocks of cocaine, and police had observed the defendant engaging in a narcotics transaction. Calway, 98-2061 at 8, 748 So.2d at 1209.

The Calway court recognized that while the defendant was convicted of possession with intent to distribute, there was evidence that could have supported a charge of distribution. Calway, 98-2061 at 8, 748 So.2d at 1210-11. Further, the court found that the defendant’s prior convictions for theft, burglary, possession of narcotics paraphernalia, possession of cocaine, and possession of marijuana, justified the imposition of the maximum sentence. Thus, the court held that the sentence imposed by the trial court was not constitutionally excessive. Calway, 98-2061 at 8, 748 So.2d at 1210.

Other cases have upheld lesser sentences when considering constitutional ex-cessiveness of sentences for second felony offenders with similar or worse criminal backgrounds than the defendant. Nevertheless, we find the sentence is not constitutionally excessive.

The review of sentences under La. Const. Art. 1, § 20 does not provide an appellate court with a vehicle for substituting its judgment for that of a trial judge as to what punishment is most appropriate in a given case. State v. Williams, 07-1111, p. 1 (La.12/7/07), 969 So.2d 1251,1252. On appellate review of a sentence, the relevant question is not whether another sentence might have been more appropriate, but whether the trial court abused its broad sentencing discretion. State v. Walker, 00-3200, p. 2 (La.10/12/01), 799 So.2d 461, 462.

The mid-range 45-year sentence does not shock our sense of justice. The agents in the present case obtained a search warrant for the residence based on | ^information that crack cocaine was being sold there. The agents were forced to use a battering ram to open the door after it was not answered, and then still had to order the door be opened after a metal barricade prevented them from entering. The defendant attempted either to dispose of or to hide the crack cocaine that was packaged for sale. Further, the defendant had committed multiple armed robberies as a juvenile and had been convicted of possession of cocaine.

We find the trial court did not abuse its broad sentencing discretion in imposing the 45-year sentence when the defendant faced a 60-year sentence.

Counseled Assignments Of Error Numbers Three And Four

These assignments challenge the process by which the trial court ruled on the motions to reconsider sentence. The defendant points out that the judge presiding on remand denied the motions solely on the basis that he did not have access to the original sentencing judge’s thought process. The defendant asserts the trial court failed to give any meaningful consideration to the motions prior to denying them.

The defendant claims that when the sentencing judge’s errors and omissions were brought to the attention of the judge on remand through the motions to reconsider sentence, the judge failed to rule upon the motions and gave no deference to his duty to review the substantive merits of the motions. He concludes the motions did not receive the consideration to which he was lawfully entitled. He argues that at minimum the motions to reconsider sentence should have been granted on the basis that the sentencing court’s compliance with La. C. Cr. P. art. 894.1 was wholly inadequate.

As previously discussed, the defendant’s failure to file a motion to reconsider after the judge resentenced him on remand prohibits our review of the | ^sentence except for constitutional excessiveness, while any issue relating to the original 30-year sentence that was vacated is moot.

We find no merit to the argument that the motions were not given meaningful consideration, because there was a hearing on the motions to reconsider sentence.

A trial court is not required to conduct a hearing on a motion to reconsider sentence. La. C. Cr. P. art. 881.1; State v. Bedoya, 08-630, p. 16 (La.App. 5 Cir. 12/16/08), 998 So.2d 1283, 1292, writ filed, 2009-0484 (La.11/20/09), 25 So.3d 784. A defendant suffers no prejudice by summary denial of his motion to reconsider sentence, where the sole basis for the motion for reconsideration of sentence is that the sentence was excessive, and the sentences are not constitutionally excessive. Id.

Here, on remand the judge stated he had reviewed the record as well as this Court’s opinion. Although the judge commented he did not have the benefit of the thought process of the sentencing judge, we construe that remark as his recognition that the sentencing judge, who presided over the defendant’s trial, was in the best position to impose the sentence.

A trial judge is in the best position to consider the aggravating and mitigating circumstances of a particular case and, therefore, is given broad discretion in sentencing. State v. Cook, 95-2784, p. 2 (La.5/31/96), 674 So.2d 957, 958, cert. denied, 519 U.S. 1043, 117 S.Ct. 615, 136 L.Ed.2d 539 (1996); State v. Aleman, 01-743, p. 20 (La.App. 5 Cir. 1/15/02), 809 So.2d 1056, 1070, writ denied, 02-0481 (La.3/14/03), 839 So.2d 26.

Further, the defendant did not raise the issue of failure to comply with La. C. Cr. P. ai't. 894.1 regarding his enhanced sentence. This Court conducted a review for constitutional excessiveness. The defendant’s sentence does not shock [17this Court’s sense of justice. Finally, after being resentenced on remand following the denial of the motions to reconsider, the defendant failed to file a motion to reconsider sentence.

We find no merit to these assignments.

Pro Se Assignments of Error

In his pro se brief, the defendant makes the following assignments:

1. Whether Appellant’s trial defense Attorney rendered ineffective assistance during pre-trial proceedings in his case:
2. Whether Appellant’s First Appointed Louisiana Appellate Project Attorney Bertha Hillman rendered ineffective assistance during the Prosecution of Appellant’s Direct Appeal of his drug conviction, and;
3. Whether Appellant should be allowed a fair opportunity to chai-lenge, for the First time, Via, supplementation on appeal of the excessiveness of his sentence, the unconstitutional (Illegal) search and seizure of evidence found by narcotic agents at the apartment residence located at 3725 Marion street, in Jefferson Parish, Louisiana in March 2001.
4. Whether the affidavit establishing probable cause to search and seize evidence from an apartment, including the defendant’s arrest, was tainted by open court testimony from prosecution witness.

In the pro se brief, the defendant’s first two claims involve ineffective assistance of counsel claims regarding his trial counsel during pre-trial proceedings and Bertha Hillman, his first appointed counsel, during his direct appeal. The third pro se claim involves the search and seizure of evidence found by narcotic agents at the residence. The last pro se claim challenges the affidavit supporting the search warrant; the defendant claims the affidavit contains a falsehood and lacks probable cause.

On the first appeal this Court affirmed the defendant’s conviction; accordingly, the defendant’s second appeal is limited to the matters remanded to | isthe trial court. Any claim not related to the rulings on the motions to reconsider and sentencing will not be considered on this appeal. See State v. Triche, 03-910, p. 3 (La.App. 5 Cir. 12/30/03), 864 So.2d 832, 834; State v. Gas-senberger, 02-658, p. 4 (La.App. 5 Cir. 12/11/02), 836 So.2d 271, 273.

Because the defendant’s ‘pro se assignments of error pertain to pretrial and trial matters, we do not address them.

ERROR PATENT DISCUSSION

Following our usual procedure, we reviewed the record for errors patent. 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).

The defendant received a patent error review on his original appeal, in which this Court noted certain sentencing errors patent in the defendant’s original and enhanced sentences. However, because the case was being remanded for rulings on the motions to reconsider sentence, we found it premature to address the sentencing errors. Evans, 02-1108 at 5-6, 844 So.2d at 114.

We also recognized that the trial court’s failure to advise the defendant of the specific allegations against him and of his right to be tried and to remain silent was harmless error, because the State presented competent evidence at the multiple bill hearing to establish the defendant’s habitual offender status and the defendant did not testify or make any comments during the multiple bill hearing. Evans, 02-1108 at 6, 844 So.2d at 114-15. Further, we found that the defendant waived his right to admit or deny the allegations of the amended multiple bill when defendant did not lodge an objection prior to the multiple bill hearing. Evans, 02-1108 at 6-7, 844 So.2d at 115.

The defendant is not entitled to a second patent error review of the matters encompassed in the first appeal. See State v. Taylor, 01-452, p. 10 (La.App. 5 Cir. J^l1/14/01), 802 So.2d 779, 783, writ denied, 01-3326 (La.1/10/03), 834 So.2d 426. He now is limited to a patent error review of the proceedings on remand. State v. Chisley, 06-900, p. 5 (La.App. 5 Cir. 4/24/07), 957 So.2d 226, 229, writ denied, 07-1828 (La.6/6/08), 983 So.2d 911.

The patent sentencing errors this Court noted on the first appeal, but found premature to address due to the remand order, were as follows.

In the original sentence, the trial judge imposed the 30-year sentence -without benefit of parole, probation, or suspension of sentence. However, La. R.S. 40:967(B)(4)(b) provides that only the first five years of the sentence should be without benefit of parole, probation, or suspension of sentence. With respect to the enhanced sentence, the trial judge imposed the 45-year sentence without benefit of probation or suspension of sentence. However, the trial judge failed to comply with the underlying statute which provides that the first five years of the sentence should be without benefit of parole, probation, or suspension of sentence. La. R.S. 40:967(B)(4)(b). Nevertheless, since we are remanding this matter for rulings on the motions to reconsider sentence, it is premature to address these patent sentencing errors.

Evans, 02-1108 at 5-6, 844 So.2d at 114.

On remand, the court resentenced the defendant and imposed a new enhanced sentence. “An illegal sentence may be corrected at any time by the court that imposed the sentence or by an appellate court on review.” La. C. Cr. P. art. 882. It appears the trial judge was attempting to correct the sentence in compliance with the error patent noted in this Court’s opinion.

Next, we note there are discrepancies between the commitment and the transcript regarding whether the defendant’s enhanced sentence was vacated prior to resentencing on remand. The transcript does not reflect that the judge vacated defendant’s previous sentence prior to re-sentencing defendant. Although the trial judge did not set aside the previous enhanced sentence, he did state that he was | gni'esentencing the defendant. We interpret this to mean that the other sentence was set aside and consider the new sentence as defendant’s enhanced sentence.

In addition, the commitment states that the previous sentence was vacated.

In State v. Mayer, 99-8124 (La.3/31/00), 760 So.2d 309, 310, our supreme court found that to the extent that the commitment/minute entry reflected that the trial judge had vacated the defendant’s original sentence “and thereby eliminated any possible confusion as to the terms of the defendant’s confinement, the failure of the transcript of the multiple offender hearing to show that the court did so before sentencing the defendant as a multiple offender did not affect the substantial rights of the defendant.” The Mayer court ordered that the defendant’s multiple offender sentence imposed by the trial court be reinstated. Accordingly, we find that the new sentence is properly before this Court on review.

In addition to the question whether the prior enhanced sentence was vacated, we find additional discrepancies between the commitment and transcript relating to the remanded matter.

On remand, the State suggested that the court resentence defendant on the enhanced sentence to clarify that the first five years of the sentence were without benefit of parole, probation, or suspension of sentence. The trial court resentenced defendant to 45 years imprisonment at hard labor, with the first five years to be served “without benefits.” The commitment, however, states that the first five years of the sentence are without benefit of probation or suspension of sentence.

Generally, the transcript prevails where there is an inconsistency between the minute entry and the transcript. State v. Lynch, 441 So.2d 732, 734 (La.1983). The transcript must prevail in this case. See Lynch, swpra.

La. R.S. 15:529.1(G) requires that all habitual offender sentences be served without the benefit of probation or suspension of sentence. In addition, the 12i underlying statute, La. R.S. 40:967(B), requires the restriction of parole for the first five years. Although the judge stated that the sentence was without benefits for the first five years, he did not state that the remainder of the sentence was also without the benefit of probation or suspension of sentence. See La. R.S. 40:967(B)(4)(b); La. R.S. 15:529.1(G).

Hence, the trial court imposed an illegally lenient enhanced sentence, because he restricted “benefits” for only five years, but no corrective action is required. Under La. R.S. 15:301.1 and State v. Williams, 00-1725 (La.11/28/01), 800 So.2d 790, a statute’s requirement that a defendant be sentenced without benefit of parole, probation or suspension of sentence is self-activating. State v. Stokes, 02-339, p. 4 (La.App. 5 Cir. 10/16/02), 831 So.2d 354, 357, writ denied, 03-2750 (La.11/8/04), 885 So.2d 1127.

There is an additional discrepancy between the sentencing transcript and the commitment regarding the trial court’s post-conviction relief advisory under La. C. Cr. P. art. 930.8. Although the commitment reflects a proper advisory of the prescriptive period for filing post-conviction relief, the transcript reflects an the advisory was incomplete. The trial judge advised defendant that he had “two years to file for post conviction relief.”

The failure to advise a defendant that “the prescriptive period runs from the time his conviction and sentence become final” is an incomplete advisory. State v. Grant, 04-341, p. 5 (La.App. 5 Cir. 10/26/04), 887 So.2d 596, 598 (emphasis in original). No application for post-conviction relief, including an application that seeks an out-of-time appeal, shall be considered if it is filed more than two years [22after the judgment of conviction and sentence has become final under the provisions of La. C. Cr. P. arts. 914 or 922.

In the past, this Court has ordered the trial court to properly advise the defendant of the prescriptive period under LSA-C.Cr.P. art. 930.8 by written notice within ten days of the rendition of this Court’s opinion and then to file written proof in the record that the defendant received the notice. Recently, however, this Court rendered a decision that corrected this patent error by way of its opinion. See State v. Davenport, 08-463 (La.App. 5 Cir. 11/25/08), 2 So.3d 445, writ denied, 2009-158 (La.10/16/09), 19 So.3d 473, citing State v. Morris, 40,322, p. 4 (La.App. 2 Cir. 1/25/06), 920 So.2d 359, 363.

Following the lead of Davenport and Morris, therefore, we advise defendant, by this opinion, that no application for post-conviction relief, including applications that seek an out-of-time appeal, shall be considered if it is filed more than two years after the judgment of conviction and sentence has become final under the provisions of La. C. Cr. P. arts. 914 or 922. Davenport, 08-463, p. 11, 2 So.3d at 451.

We note further that the May 15, 2003 commitment, which reflects the resentenc-ing of defendant as a habitual offender on remand, does not list the defendant’s habitual offender status. The transcript reflects that the defendant was found to be a second felony offender and that he was sentenced as such. The commitment states that the defendant was “sentenced under Multiple Bill statute 15:529.1,” but does not reflect that defendant was sentenced as a second felony offender.

Considering this discrepancy, we shall remand this matter to the trial court for the limited purpose of correcting the commitment to state that the defendant was sentenced as a second felony offender. See State v. Scott, 08-703, p. 12 | ^(La.App. 5 Cir. 1/27/09), 8 So.3d 658, 666, writ filed, 2009-0650 (La.12/11/09), 23 So.3d 910. The minute entry also must be corrected. See La. C. Cr. P. art. 892(B)(2); State ex rel. Roland v. State, 06-0244 (La.9/15/06), 937 So.2d 846.

DECREE

For the foregoing reasons, the sentence is affirmed. The matter is remanded and the district court is ordered to correct the commitment to state that the defendant was sentenced as a second felony offender. The district court is further ordered to make an entry in the minutes reflecting this change and to direct the clerk of court to transmit the original of the minute entry to the officer in charge of the institution to which the defendant has been sentenced.

SENTENCE AFFIRMED; REMANDED FOR CORRECTION OF PATENT ERRORS.

      . The first motion for reconsideration was made after the original sentencing; the second was made after the habitual offender sentencing.

      . See Error Patent section, infra, for discussion of discrepancies between the commitment and the sentencing transcript.

      . The writ dispositions erroneously stated that the defendant's sentence had been vacated. In fact, the sentence was not vacated on the appeal.

      .At trial and the original sentencing, as well as the first habitual offender sentencing, the district judge was Ronald Bodenheimer. On the remand, the district judge was Hans Lilje-berg.

      . See Error Patent discussion, infra, regarding failure of the judge on remand to vacate the previous 45-year sentence prior to resen-tencing the defendant.

      . See State v. Jackson, 07-975, pp. 5-12 (La.App. 5 Cir. 4/15/08), 985 So.2d 246, 250-53; State v. Harvey, 08-0217, pp. 6-9 (La.App. 4 Cir. 5/13/09), 12 So.3d 496, 500-02.

      . The restrictions imposed on parole eligibility in multiple offender sentences under La. R.S. 15:529.1 "are those called for in the referenced] statute." State v. Bruins, 407 So.2d 685, 687 (La.1981).

      . Although this Court mentioned patent sentencing error in the first appeal regarding restriction of benefits for defendant's 30-year sentence, this error is moot because the sentence was vacated. See State v. Smith, 09-100 (La.App. 5 Cir. 8/25/09), 20 So.3d 501, writ filed, 2009-2102 (La.4/5/10), - So.3d -


author: EDWARD A. DUFRESNE, JR., Chief Judge.

text:
    Irene Antoinette Noel WIEDEMANN v. Lawrence D. WIEDEMANN.
    No. 09-CA-41.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 29, 2009.

      Jeffrey W. Bennett, Attorney at Law, Harahan, LA, for Plaintiff/Appellant.
    Jack L. Dveirin, Attorney at Law, New Orleans, LA, for Defendant/Appellee.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., SUSAN M. CHEHARDY, and MARC E. JOHNSON.
   EDWARD A. DUFRESNE, JR., Chief Judge.

| ¿This is a suit to partition property. At issue here is the validity of an act of donation of immovable property in authentic form made by a then husband to his then wife. The trial judge found that the donee had not signed the act prior to the signing by the witnesses and notary, and entered partial summary judgment declaring the act a nullity, relying on Zamjahn v. Zamjahn, 02-871 (La.App. 5 Cir. 1/28/03), 839 So.2d 309. For the following reasons we reverse that judgment.

Initially, we note that the donee designated her action in bringing the matter before this court as an appeal. Article 1915 B of the La.Code of Civil Procedure provides that a partial summary judgment that does not resolve all issues in a case is not appealable unless designated as a final judgment by the trial judge. There was no such designation here, and therefore the judgment is not appealable. However, such judgments may be brought to this court pursuant to our supervisory jurisdiction. La. C.C.P. Art. 2201. Although it is not mandatory that we exercise this jurisdiction, it is within our discretion in appropriate cases to do so. Because Injudicial economy counsels that we do so here, we will treat this matter as an application for supervisory writs.

We first note that donations inter vivos consist of two parts: the donation and the acceptance. Article 1541(prior Art. 1536) of the La. Civ.Code provides that donations inter vivos “shall be made by authentic act under penalty of absolute nullity....” La. C.C. Art. 1544 (prior Art. 1540) now provides that the acceptance shall be made during the lifetime of the donor and “may be made in the act of donation or subsequently in writing ” (emphasis added). La. C.C. Art. 1833 defines an authentic act as one executed in the presence of a notary and two witnesses and signed by the parties and the notary and witnesses. La. C.C. Art. 1835 states that an authentic act constitutes full proof as between the parties. Finally, La. C.C. Art. 1848 provides that testimonial or other evidence may not be admitted to negate or vary the contents of an authentic act except to show vices of consent, simulation or to prove modification by later agreement. The jurisprudence interpreting this article has also permitted such evidence to show eri’or, fraud or duress. (See “Revision Comments—1984,” to this article).

In the present case, the act of donation produced by the donee recites that it was executed in the presence of the notary and two witnesses and shows that it was signed by the parties and the notary and witnesses. It further recites that the donation was accepted by the donee. The donor attacked the validity of this act by offering the deposition testimony of the notary (given two years after the act was passed) to the effect that the donor, one witness, and she, the notary, signed the act at one time, but she had no recollection of when the second witness and the donee signed. The donor at first stated that he signed the document in the presence of both witnesses and the notary, but later said that he had no clear recollection of the events. He also introduced a purported copy of the last page of the act which |4shows the signatures of the donor, the two witnesses and the notary, but not that of the donee. This document was found in a file, but no one had any recollection of how or by whom it came to be made. The donee recalled that the parties, the witnesses and the notary were all together at a table when the document was signed, but could not recall specifically in what order the signatures were affixed. The two witnesses had no recollection of what transpired at the signing.

On the basis of the above evidence the trial judge found that the acceptance was invalid because the donee signed the act after the witnesses and the notary had done so. We hold that this was error for two reasons.

First, authentic acts are presumed to be valid and a party asserting otherwise must present strong and convincing proof of such magnitude as to overcome this presumption. Meltzer v. Meltzer, 95-0551, 95-0552 (La.App. 4 Cir. 9/2/95), 662 So.2d 58, writ denied 95-2616 (La.1/5/96), 666 So.2d 293. This is especially true when the passage of time has blurred memories. Id. Here the memories of the notary and the donee are in substantial disagreement, the witnesses are unable to recall anything, and the donor at first contradicted the notary in asserting that he signed in the presence of both witnesses. As to the purported copy of the document found in a file, there was no indication of how it came into existence. Considering all of the contradictions and uncertainties raised by the evidence presented, we hold that there was no showing by strong and convincing proof to overcome the presumption that the act is valid.

Second, effective January 1, 2009, prior Civil Code Art. 1540, which provided that acceptance had to be by authentic act, was amended and renumbered 1544, to provide that acceptance only need be in writing. Article 6 of the Civil Code provides that procedural laws apply both prospectively and retroactively, while substantive laws apply only prospectively. The issue here is thus whether |5that amendment is procedural or substantive. That section of the code relating to various acts is titled “Proof of Obligations.” As such, these articles do not create obligations, but rather only define what level of proof is required to prove the existence of obligations. Similarly, the articles dealing with the forms required for gifts relate to proving that a gift has taken place. These are therefore procedural laws and are to be given retroactive effect. That being the case, we hold that the donee’s signature on the act of donation is a sufficient writing to perfect the acceptance in accordance with present Art. 1544.

For the foregoing reasons, the judgment holding that the act of donation is a nullity is reversed and that act is hereby ruled to be valid. The matter is remanded to the district court for further proceedings consistent with this opinion.

JUDGMENT VACATED, REMANDED.


author: MARION F. EDWARDS, Judge.

text:
    STATE of Louisiana v. Terrance M. WILLIAMS.
    No. 09-KA-82.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 29, 2009.
    Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Andrea F. Long, Michael F. Escudier, Elizabeth B. Curren, Assistant District Attorneys, Gretna, Louisiana, for Plaintiff/Appellee.
    Bruce G. Whittaker, Attorney at Law, Louisiana Appellate Project, New Orleans, Louisiana, for Defendant/Appellant.
    Terrence M. Williams, Angola, Louisiana, In Proper Person.
    Panel composed of Judges MARION F. EDWARDS, SUSAN M. CHEHARDY, and WALTER J. ROTHSCHILD.
   MARION F. EDWARDS, Judge.

| gDefendant/appellant, Terrance M. Williams (“Williams”), appeals his conviction and sentence on a charge of armed robbery in violation of La. R.S. 14:64. For reasons that follow, we vacate the sentence and remand the matter to the trial court for a ruling on William’s motion for a new trial.

Williams was originally charged with armed robbery and with being a convicted felon in possession of a firearm. The charges resulted from an early morning armed robbery of an employee of the New Orleans Hamburger and Seafood Restaurant in Metairie, Louisiana. The employee set off a silent alarm, alerting police to the crime. The perpetrator, later identified as Williams, stole the victim’s car keys and fled in her car. Officers arriving on the scene engaged in a car chase and, subsequently, a foot chase to capture Williams.

^Williams entered a plea of not guilty to both counts. Defense motions to suppress the evidence, identification and statements were all denied. Originally, Williams moved to act as co-counsel at his trial. However, he later waived his right to self-representation and was represented by counsel. During one of the pre-trial proceedings, the trial judge ordered that Williams be shackled and handcuffed at the trial on the merits.

A jury trial was held on the armed robbery charge and several misdemeanor charges that derived from the ensuing chase and attempts by officers to capture Williams. At the conclusion of the trial, the jury found Williams guilty of all charges.

Williams was sentenced to imprisonment at hard labor for a term of forty-nine years without benefit of parole, probation, or suspension of sentence. Williams filed a motion for reconsideration of sentence, which was denied by the trial court. He also filed a motion for appeal, which was granted.

Both defense counsel and Williams have filed briefs in this matter. Both briefs assert that it was reversible error to require Williams to remain seated, shackled, and handcuffed throughout trial in the presence of the jury. It is argued that such an extreme display of security robbed Williams of the presumption of innocence and the right to a fair trial. Additionally, Williams assigns two additional errors for our review in his pro se brief. He argues that the trial court abused its discretion in denying the motion to suppress the identification, and he was not allowed to obtain two material witnesses for testimony on his behalf at trial.

|4Williams was convicted on July 24, 2008. He filed a motion for new trial on August 20, 2008 and was sentenced on the following day. As the State points out in its brief, the record does not reflect a ruling on the motion for new trial.

Motions for new trial must be filed and disposed of before sentencing. The failure of the trial court to rule on a motion for new trial is recognized as an error that requires the defendant’s sentence be vacated and the matter remanded for a ruling. In these circumstances, this Court has followed the guidance of State v. Randolph⅛ in which the Louisiana Supreme Court vacated the sentence and remanded the matter for a ruling, and also reserved to the defendant his right to appeal his conviction and sentence in the event of an unfavorable ruling on the motion.

However, as explained in State v. Lewis, in some cases involving an appeal from a criminal matter with an outstanding motion for new trial or a motion for post-conviction judgment of acquittal, this Court has addressed the merits of the defendant’s other claims, but vacated his sentences and remanded the case to the trial court for a hearing on the outstanding motions and for a subsequent re-sentencing. More recently, this Court has remedied such errors by conditionally affirming the defendant’s conviction, vacating the sentence, and remanding for rulings on the defendant’s motions; or by simply vacating the defendant’s sentence and remanding for rulings on the defendant’s motion.

| ,-,By order of the trial judge, Williams was shackled and handcuffed and forced to remain seated during the trial. Williams filed a motion for new trial using the restraints used at trial as a supporting reason for the motion. Given the fact that the main thrust of Williams’ argument for reversal of his conviction is the same issue that was presented to the trial court for consideration in the motion for new trial, we find the best course of action in this matter is to vacate the sentence and remand the matter to the trial court for a ruling on the new trial motion without further comment on the merits of the claim. Accordingly, we vacate Williams’ sentence and remand the matter to the trial court for a hearing on the new trial motion. We reserve to Williams his right to appeal his conviction and sentence in the event of an unfavorable ruling on the motion.

SENTENCE VACATED; MATTER REMANDED.

      . The two counts on the bill of information were severed. The State subsequently dismissed count two of the bill of information, as well as a multiple offender bill filed earlier.

      . Although there is a copy of the new trial motion in the record, the index states that "original not found in record; no signed order found; disposition of motion unknown.”

      . La. C. Cr. P. art. 853.

      . State v. Morgan, 06-529 (La.App. 5 Cir. 12/12/06), 948 So.2d 199.

      . 409 So.2d 554 (La.1981) (per curiam) (on rehearing, 1982).

      . See, State v. Lewis, 04-1074 (La.App. 5 Cir. 10/6/05), 916 So.2d 294.

      . id. at 302.

      . See, State v. Wilson, 96-251 (La.App. 5 Cir. 10/1/96), 683 So.2d 775.

      . State ex reí. T.J., 01-384, p. 6 (La.App. 5 Cir. 10/17/01), 800 So.2d 969, 973.

      . State v. Davis, 01-1275, p. 4 (La.App. 5 Cir. 4/10/02), 817 So.2d 171.