author: PICKETT, Judge. AMY, J.,

text:
    STATE in the Interest of H.A.B.
    No. 09-1218.
    Court of Appeal of Louisiana, Third Circuit.
    April 14, 2010.
    Charles Bull, Jr., Welsh, LA, for Appel-lee H.A.B.
    Nicholas Pizzolatto, Jr., Louisiana Department of Social Services Office of Community Services, Lake Charles, LA, for Appellee State of Louisiana, Department of Social Services.
    David Emile Marcantel, Marcantel, Mar-cantel, Wall, Pfeiffer and Stretcher, Jennings, LA, for Appellant S.B.
    Stacey C. Naquin, Assistant District Attorney, Jennings, LA, for Appellee State of Louisiana.
    Court composed of SYLVIA R. COOKS, JOHN D. SAUNDERS, MARC T. AMY, ELIZABETH A. PICKETT, and DAVID E. CHATELAIN, Judges.

      . Honorable David E. Chatelain participated in this decision by appointment of the Louisiana Supreme Court as Judge Pro Tempore.

   PICKETT, Judge.

hS.B., the mother of the child, H.A.B., appeals a judgment terminating her parental rights.

FACTS

H.A.B. was born on April 15, 1999, and is the minor child of S.B. The events which led to this termination proceeding began on December 9, 2007, when the Department of Social Services, Office of Community Services (OCS) received a report that S.B. and H.A.B. were involved in an abusive altercation. Witnesses reported that S.B. had attempted to run H.A.B. over with her vehicle, succeeding only in striking the bicycle he was riding. S.B. later explained that she cut off H.A.B. with her car to keep H.A.B. from being run over by a truck. S.B. also allegedly slapped H.A.B. several times. When the police and a bystander tried to intervene in the altercation, both were physically attacked by S.B. While S.B. was originally charged with attempted vehicular manslaughter, all charges related to this incident were later dropped.

An OCS caseworker was called to the police station in regard to this incident. The record indicates that S.B. told the caseworker that she knew where she lived, which was interpreted as a threat by the caseworker, and S.B. was charged with intimidating a public employee. She later pled guilty to the charge and was placed on felony probation.

As a result of the December 9, 2007 incident, H.A.B. entered into the state’s custody. This was the second time that S.B. had been taken into custody by OCS. H.A.B. had been removed in March 2005 after the state validated a complaint that S.B. had a drug and alcohol abuse problem. At the same time, OCS was not able to ^validate complaints of medical neglect or lack of supervision lodged against S.B. The state returned H.A.B. to his mother’s custody in September 2006.

On February 2, 2009, the state filed a Petition for Certification for Adoption, seeking termination of the parental rights of S.B. and the unknown father of H.A.B. A trial was held on April 21 and 22, 2009, for the purpose of determining whether parental rights should be terminated. On July 2, 2009, the trial court signed a judgment terminating the parental rights of both S.B. and the unknown father to H.A.B. S.B. now appeals that judgment.

ASSIGNMENTS OF ERROR

S.B. asserts three assignments of error:

I. The court erred in finding that H.A.B. has been subject to chronic abuse and neglect since birth.
2. The court erred in finding that S.B. has refused long-term mental health care treatment that she needs to be reunified with her child.
3. The court erred in finding that it is in H.A.B.’s best interest that S.B.’s parental rights be terminated.

DISCUSSION

Burden of Proof and Standard of Review

The Louisiana legislature has recognized that the termination of parental rights is a serious action and thus has mandated that the state must satisfy an onerous burden of proof. State in the Interest of D.R.B., 00-1321 (La.App. 3 Cir. 12/6/00), 777 So.2d 508. Namely, the state bears the burden of proving each element of a ground for termination of parental rights by clear and convincing evidence. La.Ch.Code art. 1035(A); State in Interest of L.L.Z. v. M.Y.S., 620 So.2d 1309 (La.1993). The Louisiana Supreme Court has explained that:

|sThe fundamental purpose of involuntary termination proceedings is to provide the greatest possible protection to a child whose parents are unwilling or unable to provide adequate care for his physical, emotional, and mental health needs and adequate rearing by providing an expeditious judicial process for the termination of all parental rights and responsibilities and to achieve permanency and stability for the child. The focus of an involuntary termination proceeding is not whether the parent should be deprived of custody, but whether it would be in the best interest of the child for all legal relations with the parents to be terminated. As such, the primary concern of the courts and the State remains to secure the best interest for the child, including termination of parental rights if justifiable grounds exist and are proven.

State in the Interest of J.A., 99-2905, pp. 8-9 (La.1/12/00), 752 So.2d 806, 811 (citations omitted). On review of a trial court’s decision to terminate parental rights, an appellate court cannot set aside a trial court’s finding of fact in the absence of manifest error or unless the findings are clearly wrong. State in the Interest of K.G. & T.G., 02-2886, 02-2892 (La.3/18/08), 841 So.2d 759.

Louisiana Children’s Code Article 1015 provides the statutory grounds a court may use to involuntarily terminate parental rights. The state is only required to establish one of these statutory grounds. State in the Interest of ML & PL, 95-45 (La.9/5/95), 660 So.2d 830. In the present case, the state’s Petition for Certification for Adoption and Termination of Parental Rights alleged that termination of S.B.’s parental rights was appropriate pursuant to La.Ch.Code art. 1015, subsections (3), (4), and (5). The trial court based its judgment on a finding that the state had proven grounds for termination as defined by subsections (4) and (5). The relevant subsections of La.Ch.Code art. 1015 state:

|4The grounds for termination of parental rights are:

(4) Abandonment of the child by placing him in the physical custody of a nonparent, or the department, or by otherwise leaving him under circumstances demonstrating an intention to permanently avoid parental responsibility by any of the following:
(a) For a period of at least four months as of the time of the hearing, despite a diligent search, the whereabouts of the child’s parent continue to be unknown.
(b) As of the time the petition is filed, the parent has failed to provide significant contributions to the child’s care and support for any period of six consecutive months.
(c) As of the time the petition is filed, the parent has failed to maintain significant contact with the child by visiting him or communicating with him for any period of six consecutive months.
(5) Unless sooner permitted by the court, at least one year has elapsed since a child was removed from the parent’s custody pursuant to a court order; there has been no substantial parental compliance with a case plan for services which has been previously filed by the department and approved by the court as necessary for the safe return of the child; and despite earlier intervention, there is no reasonable expectation of significant improvement in the parent’s condition or conduct in the near future, considering the child’s age and his need for a safe, stable, and permanent home.

First Assignment of Error

In her first assignment of error, S.B. argues that “the [trial] court erred in finding that H.A.B. has been subject to chronic abuse and neglect since his birth.” Specifically, S.B. asserts that the state failed to carry its burden of proving by clear and convincing evidence that H.A.B. was subject to chronic abuse and thus “failed in its effort to prove even one ground for termination in [La.]Ch.Code art. 1015.” S.B.’s argument focuses on a factual finding included in the trial court’s reasons for judgment, which seemingly addresses the statutory ground for termination found in |fiLa.Ch.Code art. 1015(3)(i). However, notwithstanding this factual determination, the trial court’s judgment terminates S.B.’s parental rights under La.Ch.Code art. 1015 subsections (4) and (5), not subsection (3).

“It is well settled that an appeal is taken from a written final judgment, not the trial court’s reasons for judgment, which do not form part of the judgment.” Danzey v. Evergreen Presbyterian Ministries, 95-167, p. 3 (La.App. 3 Cir. 6/7/95), 657 So.2d 491, 494. In the present case, the trial court’s written final judgment states that S.B.’s parental rights “are hereby permanently and irrevocably terminated pursuant to [Louisiana] Children’s Code Article 1015(4) and (5).” Accordingly, S.B.’s assignment of error contending that the state’s failure to prove chronic abuse and neglect resulted in the state’s failure to prove any ground of termination is without merit.

Second Assignment of Error

In her second assignment of error, S.B. asserts that the trial court erred in finding that the state proved grounds for termination under La.Ch.Code art. 1015(5). Louisiana Children’s Code Article 1015(5) sets forth a three-pronged requirement for termination, “requiring a showing of (1) a lapse of one year prior to termination; (2) lack of substantial compliance with the case plan; and, (3) lack of reasonable expectation of significant improvement in the near future.” State v. F.Y. & R.D.Y., 05-920, p. 15 (La.App. 3 Cir. 3/1/06), 924 So.2d 1164, 1174. The state must prove each of the three elements by clear and convincing evidence. La.Ch.Code 1035(A).

In the present case, the first prong is not in dispute. The state filed the petition for termination just over fourteen months after removing H.A.B. from S.B.’s custody and just over one year after the first case plan was approved by the trial court on January 24, 2008.

S.B. does dispute that the state proved lack of substantial compliance with the case plan, specifically that she failed to participate in long-term mental health treatment as required by the case plan. Louisiana Children’s Code Article 1036(C) provides that proof of lack of substantial parental compliance with a case plan can be evidenced by the following:

(1) The parent’s failure to attend court-approved scheduled visitations with the child.
(2) The parent’s failure to communicate with the child.
(3) The parent’s failure to keep the department apprised of the parent’s whereabouts and significant changes affecting the parent’s ability to comply with the case plan for services.
(4) The parent’s failure to contribute to the costs of the child’s foster care, if ordered to do so by the court when approving the case plan.
(5) The parent’s repeated failure to comply with the required program of treatment and rehabilitation services provided in the case plan.
(6) The parent’s lack of substantial improvement in redressing the problems preventing reunification.
(7) The persistence of conditions that led to removal or similar potentially harmful conditions.

Since December 2007, S.B. has done everything OCS asked of her and more. Of the seven factors listed in La.Ch.Code art. 1036(C), there is no suggestion that she | ^failed to attend visitation, failed to communicate with the child or OCS, or failed to contribute to the costs of the child’s care. The record also shows that since December 2007, she has complied with treatment and rehabilitation services in the case plan and that the trial court’s finding to the contrary is manifestly erroneous. The record shows that S.B. attended every counseling session or treatment program that the state required of her.

The record also reflects that S.B. “showed substantial improvement in redressing the problems preventing reunification.” While reunification with H.A.B. at this time may not be appropriate, she has done everything she has been asked to do by OCS, and has definitely made substantial improvement. She has stayed off of drugs and alcohol and stayed on her prescribed medication for epilepsy and mental disorders. Finally, because she followed the case plan, many of the conditions that led to removal have been addressed. She has permanent housing and the means to care for H.A.B.

While it is true that S.B.’s mental illness will be a constant factor in her life, that alone is insufficient reason to terminate parental rights in this case. Dr. Alfred Buxton testified that S.B. is bipolar and shows traits of borderline personality and characterological disorder. He testified that the mother could reunite with the child if they had access to constant help and sessions with a therapist at least four days a week. While he ultimately recommended that termination was appropriate because the state could not provide the intensive therapy necessary for S.B. to successfully parent, Dr. Buxton recommended continued contact between S.B. and H.A.B.

Dr. Larry Dilks, who had seen both H.A.B. and S.B. in May 2006, also testified. He diagnosed S.B. as bipolar with anxiety disorder, borderline personality, |8and depression. Based on the information he heard at the trial, Dr. Dilks recommended that S.B.’s parental rights should be terminated because the state would be unable to provide the treatment and resources necessary to allow for reunification.

We find that the trial court was clearly wrong in finding that S.B. refused long-term health care treatment. The testimony at trial showed that the state was unprepared to continue the intensive therapy necessary for a successful reunification between mother and child. S.B., however, was shown to be willing to attend whatever treatment or therapy sessions that OCS required her to attend. We will not impute to S.B. the state’s determination that S.B. is beyond help.

The remaining factor is “the persistence of conditions that led to removal.” Clearly, S.B. continues to suffer from mental illness that makes caring for a child difficult. Nevertheless, all the evidence indicates she has taken every step to improve her situation and reunify with her child.

We find that the trial court committed manifest error in finding that termination was appropriate pursuant to La.Ch.Code art. 1015(5) because the state failed to prove substantial compliance with the case plan. Furthermore, as the record indicates that termination of the parental rights of the unknown father, and not S.B., was based on abandonment in La.Ch.Code art. 1015(4), we reverse the judgment of the trial court terminating the parental rights of S.B.

Because we find that the second assignment of error has merit, we need not address the final assignment of error raised by S.B.

| ¿DECREE

For the foregoing reasons, the judgment of the trial court terminating the parental rights of S.B. in relating to H.A.B. is reversed. Costs of these proceedings are assessed to the state in the amount of $6,867.50.

REVERSED.

AMY, J., dissents and assigns written reasons.

AMY, J.,

dissenting.

| ¡The majority reverses the trial court’s judgment terminating the parental rights of S.B., finding that the State failed to prove grounds for termination of S.B.’s parental rights under La.Ch.Code art. 1015(5). I respectfully dissent as I find the evidence supports the trial court’s judgment.

The trial court heard testimony from several witnesses who opined that H.A.B. should not be returned to his mother. Dr. Alfred E. Buxton opined that because the State could not realistically provide the type of intensive services that S.B. would need in order to provide H.B. with a stable environment, H.B. should not be returned to his mother. Dr. Lawrence S. Dilks agreed that H.B. should not be returned to his mother, reasoning that S.B.’s history of failing to change her behavior after being afforded opportunities, demonstrates an inability on her part to ever actually change that behavior.

Louisiana Children’s Code Article 1086(C) provides several factors which can evidence a parent’s lack of compliance with a case plan under La.Ch.Code art. 1015(5). My review of the record, especially review of the expert testimony, reveals that S.B.’s lack of compliance with the case plan is evidenced by “lack of substantial improvement in redressing the problems preventing reunification” and “persistence of conditions that led to removal or similar potentially harmful conditions.” La.Ch.Code art. 1036(C)(6) and (7).

[2The majority finds that trial court erred in finding grounds for termination, but notes that reunification may not appropriate at this time. Admittedly, the State’s primary goal in the child in need of care process is reunification; however, if reunification is not possible, termination is appropriate. State ex rel J.M., 02-2089 (La.1/28/03), 837 So.2d 1247. “Certainly, children have a need for permanency. Forcing children to remain in foster care indefinitely, when there is no hope of reuniting them with their families, runs afoul of the state and federal mandates to further the best interests of the child.” Id. at 1257. The record indicates that S.B. has a history of State intervention involving the rearing of H.B. since 2005. Further, the expert testimony supports that S.B. will be unable to care for the child unless there is indefinite State intervention and monitoring. Accordingly, I find that the record supports the trial court’s determination that termination of S.B.’s parental rights is appropriate.

For these reasons, I find that an affirmation is warranted.

      . The unknown father's parental rights were terminated pursuant to the abandonment provisions of Article 1015(4). The judgment terminating the father’s parental rights was not appealed, and therefore is not before this court.

      . La.Ch.Code art. 1015(3)(i) reads:
      (3) Misconduct of the parent toward this child or any other child of the parent or any other child in his household which constitutes extreme abuse, cruel and inhuman treatment, or grossly negligent behavior below a reasonable standard of human decency, including but not limited to the conviction, commission, aiding or abetting, attempting, conspiring, or soliciting to commit any of the following:
      (i) Abuse or neglect which is chronic, life threatening, or results in gravely disabling physical or psychological injury or disfigurement.


source: Caselaw Access Project

author: CHATELAIN, Judge Pro Tempore.

license: Public Domain

text:
    STATE of Louisiana v. Edward N. WIDE.
    No. 09-1112.
    Court of Appeal of Louisiana, Third Circuit.
    April 14, 2010.
    John F. DeRosier, District Attorney, Carla S. Sigler, Assistant District Attorney, Lake Charles, Louisiana, for State of Louisiana.
    G. Paul Marx, Louisiana Appellate Project, Lafayette, Louisiana, for Defendant/Appellant, Edward N. Wide.
    Court composed of SYLVIA R. COOKS, JAMES T. GENOVESE, and DAVID E. CHATELAIN, Judges.
   CHATELAIN, Judge Pro Tempore.

|,The defendant appeals, asserting that his sentence for identity theft over $1000 is excessive. We affirm.

FACTS

On March 21, 2007, the defendant, Edward N. Wide, was charged by bill of information with identity theft over $1000, a violation of La. R.S. 14:67.16. He pled guilty to the charge on June 27, 2008, in exchange for the State’s agreement not to prosecute him as a habitual offender. See La. R.S. 15:529.1.

At his sentencing hearing, the defendant admitted that he attempted to use false identification bearing the victim’s name, John Zolinger, III, to withdraw $4400 from the victim’s savings account at a Whitney National Bank in Calcasieu Parish. The trial court sentenced him to ten years at hard labor with credit for time served. He filed a motion to reconsider sentence, urging that his sentence is unconstitutionally excessive; the motion was denied. He then perfected this appeal.

EXCESSIVE SENTENCE

The defendant argues, as he did in his motion to reconsider sentence, that his sentence is excessive. He claims in brief to this court that his conduct amounts to an |2attempt, not a theft, because he was arrested before the bank transferred any funds to him.

The defendant did not identify any specific ground in his motion to reconsider sentence. He merely stated that his “sentence is unconstitutionally excessive.” The defendant’s failure to set forth a specific ground for his motion to reconsider resulted in only a claim of constitutional exces-siveness being preserved for appellate review. See La.Code Crim.P. art. 881.1(E). See also, State v. Mims, 619 So.2d 1059 (La.1993); State v. West, 01-969 (La.App. 3 Cir. 12/12/01), 801 So.2d 619. Therefore, the defendant’s claim that his sentence is excessive because his conduct amounted to an attempted theft, not a theft, was not preserved for review on appeal.

The offense of identity theft when the thing of value amounts to $1000 or more is punishable by imprisonment “with or without hard labor, for not more than ten years, or [a fine of] not more than ten thousand dollars, or both.” La. R.S. 14:67.16(0(1). Thus, although the defendant did not receive a fine, he received the maximum prison sentence allowed for this crime.

In State v. Barling, 00-1241, 01-1591, p. 12 (La.App. 3 Cir. 1/31/01), 779 So.2d 1035, 1042-43, writ denied, 01-838 (La.2/1/02), 808 So.2d 331, this court set forth the standard for reviewing excessive sentence claims:

[Louisiana Constitution Article 1], § 20 guarantees that, “[n]o law shall subject any person to cruel or unusual punishment.” To constitute |aan excessive sentence, the reviewing court must find the penalty so grossly disproportionate to the severity of the crime as to shock our sense of justice or that the sentence makes no measurable contribution to acceptable penal goals and is, therefore, nothing more than a needless imposition of pain and suffering. State v. Campbell, 404 So.2d 1205 (La.1981). The trial court has wide discretion in the imposition of sentence within the statutory limits and such sentence shall not be set aside as excessive absent a manifest abuse of discretion. State v. Etienne, 99-192 (La.App. 3 Cir. 10/13/99); 746 So.2d 124, writ denied, 00-0165 (La.6/30/00); 765 So.2d 1067. The relevant question is whether the trial court abused its broad sentencing discretion, not whether another sentence might have been more appropriate. State v. Cook, 95-2784 (La.5/31/96); 674 So.2d 957, cert. denied, 519 U.S. 1043, 117 S.Ct. 615, 136 L.Ed.2d 539 (1996).

Thereafter, in State v. Smith, 02-719, p. 4 (La.App. 3 Cir. 2/12/03), 846 So.2d 786, 789, writ denied, 03-562 (La.5/30/03), 845 So.2d 1061, this court addressed the analysis used when deciding whether a sentence shocks our sense of justice or makes no meaningful contribution to acceptable penal goals, explaining:

[A]n appellate court may consider several factors including the nature of the offense, the circumstances of the offender, the legislative purpose behind the punishment and a comparison of the sentences imposed for similar crimes. State v. Smith, 99-0606 (La.7/6/00), 766 So.2d 501. While a comparison of sentences imposed for similar crimes may provide some insight, “it is well settled that sentences must be individualized to the particular offender and to the particular offense committed.” State v. Batiste, 594 So.2d 1 (La.App. 1 Cir.1991). Additionally, it is within the purview of the trial court to particularize the sentence because the trial judge “remains in the best position to assess the aggravating and mitigating circumstances presented by each case.” State v. Cook, 95-2784 (La.5/31/96), 674 So.2d 957, 958.

When sentencing the defendant in the present case, the trial court observed, after reviewing the presentence investigation report, “I can’t let you stay out on the streets. You get in trouble every time you turn around.” As reflected in the record, the defendant was on parole for manslaughter when he attempted to use a stolen bank card to withdraw $4400 from Mr. Zolinger’s bank account. If not for the State’s agreement not to prosecute him as a habitual offender in exchange for his guilty plea, [ 4the defendant’s potential sentence would have been imprisonment with or without hard labor for not less than five years and not more than twenty years. La. R.S. 15:529.1(A)(l)(a); La. R.S. 14:67.16(C)(1). Accordingly, the defendant substantially benefitted by the State’s agreement not to prosecute him as a habitual offender in exchange for his guilty plea, cutting his potential sentence in half. Under these circumstances, we cannot say the defendant’s sentence is excessive.

DISPOSITION

The defendant’s sentence is affirmed.

AFFIRMED.

       Honorable David E. Chatelain participated in this decision by appointment of the Louisiana Supreme Court as Judge Pro Tempore.

      . Even though the defendant does not specify this as an assignment of error, he asserts that the State did not set forth a factual basis for his guilty plea at the time that he entered his plea or when he was sentenced. However, our review of the record shows that the State outlined the following facts during the proceeding at which the defendant pled guilty:
      Next is Edward Wide. January 26, 2007, he entered the Whitney Bank here in Calca-sieu Parish and using the name John Zo-linger, III, had a fake ID, a Texas ID.
      He attempted to withdraw $4400 from the victim's savings account. The victim had apparently been pick-pocketed while at a game at the dome sometime earlier than this.

      . Identity theft is defined as:
      [T]he intentional use or possession or transfer or attempted use with fraudulent intent by any person of any personal identifying information of another person to obtain, possess, or transfer, whether contemporaneously or not, credit, money, goods, services, or any thing else of value without the authorization or consent of the other person.
      La. R.S. 14:67.17(B) (emphasis added).


author: CHATELAIN , Judge Pro Tempore.

text:
    STATE of Louisiana v. Melanie S. HANNER.
    No. 09-1109.
    Court of Appeal of Louisiana, Third Circuit.
    April 14, 2010.

      J. Reed Walters, District Attorney, Steven P. Kendrick, Assistant District Attorney, Jena, Louisiana, for State of Louisiana.
    Carey J. Ellis, III, Louisiana Appellate Project, Rayville, Louisiana, for Defendant/Appellant, Melanie S. Hanner.
    Court composed of SYLVIA R. COOKS, JAMES T. GENOVESE, and DAVID E. CHATELAIN, Judges.
   CHATELAIN , Judge Pro Tempore.

|,A jury convicted the defendant, Melanie S. Hanner, of possession of a firearm by a convicted felon. She now appeals, alleging that the evidence was insufficient to support her conviction. Finding the State did not prove that the ten-year cleansing period had not lapsed, we reverse the defendant’s conviction and vacate her sentence.

PROCEDURAL HISTORY

On July 24, 2008, the State charged the defendant by bill of information with possession of a firearm by a convicted felon, a violation of La. R.S. 14:95.1. The defendant waived arraignment. Subsequently, on February 23, 2009, the State amended the bill of information to set forth that the defendant had previously been convicted on September 15, 1995 of the felony offense of possession of marijuana with intent to distribute and that ten years had not elapsed between May 30, 2008, the date of the instant offense, and the completion of her sentence, probation, parole, or suspension of sentence for the said prior conviction. Trial by jury commenced on the date the bill of information was amended. On February 24, 2009, the jury found the defendant guilty as charged. On April 7, 2009, the trial court denied the defendant’s motion for new trial. After waiving all applicable sentencing delays, the trial court sentenced the defendant to serve ten years at hard labor without benefit of parole, probation, or suspension of sentence, with credit for time served; additionally, the trial court ordered the defendant to pay a $1,000 fine within one year of her release. This appeal followed.

| ¡.FACTS

Detective Tracy Clark of the LaSalle Parish Sheriffs Office testified that on May 80, 2008, he responded to a report of a disturbance involving a handgun at the defendant’s home and the neighboring home of her mother, Donna Childress. Upon his arrival at the defendant’s home, Detective Clark saw no signs of an altercation. Nevertheless, he asked the defendant whether she had a handgun on her property. She told him that there was a handgun that had belonged to her grandfather in a mobile home on her property that she kept for shooting snakes. The defendant located the handgun and agreed to allow Detective Clark to take it into police custody. Detective Clark had maintained custody of the handgun ever since; however, at the time of trial he had not run a check to determine to whom the gun was registered. The handgun was received into evidence as State’s Exhibit 1.

Detective Clark testified that in June of 2008, Ms. Childress reported that the defendant was “still harassing her” and that the defendant had several felony convictions. Thereafter, he ran a criminal history check on the name “Melanie Hanner” in Louisiana and Texas, and he discovered that sonjeone with that name had two convictions for felony drug charges. Detective Clark identified a set of certified records that he had received from Calcasieu Parish which indicated that a Ms. Melanie S. Hanner, with a date of birth of March 81,1972, had entered a plea of guilty on drug charges. No social security number was listed on the documents. Although those documents were admitted into evidence as State’s Exhibit 2, Detective Clark did not testify regarding the contents of the documents.

|sDetective Clark also testified that he ran the defendant’s name through the Justice Department database. He explained that the database would provide an address and a photograph of a person, if that person had ever had a driver’s license or I.D. card, or if that person had ever been arrested. When Detective Clark ran the defendant’s name, he saw her photograph, date of birth, and social security number, but no prior convictions were listed. Prior convictions for a Melanie Hanner were, however, reflected on the National Crime Information Center website.

Detective Clark stated that after receiving the Calcasieu Parish records, he returned to the defendant’s home to arrest her on the charge of possession of a firearm by a convicted felon. After the defendant was arrested, Detective Clark asked the defendant’s friend to retrieve a shotgun that he had noticed in the mobile home on his previous visit. The shotgun was received into evidence as State’s Exhibit 4. Detective Clark testified that the mobile home from which both firearms were retrieved was not liveable and that it appeared as though it was used to store junk; the electricity was not connected.

Detective Clark identified an arrest report which he had written when the defendant was booked into jail, which was admitted into evidence as State’s Exhibit 3. Although he testified that the report contained the defendant’s name and date of birth, Detective Clark did not actually testify as to that information.

DISCUSSION

The defendant contends that there was insufficient evidence to convict her of possession of a firearm by a convicted felon. More specifically, she argues that: (1) the State did not prove ownership of the firearms seized or of the mobile home where they were found, nor did it prove that the firearms were in her immediate control; (2) |4the State did not prove that the Melanie Hanner convicted in Calcasieu Parish was the same Melanie Hanner as the defendant; (3) the State did not prove that she had the intent to possess a firearm; and (4) the State did not prove that the ten-year cleansing period had not lapsed.

The State asserts that it proved beyond a reasonable doubt that a person named Melanie Hanner pled guilty on September 5, 1995, in Calcasieu Parish to possession of marijuana with intent to distribute and received a suspended sentence of three years. On May 14, 1997, that same Melanie Hanner violated her probation and was sentenced to five years imprisonment; that sentence was suspended and her probation was extended for two additional years. The State asserts it is clear from the certified records of Calcasieu Parish that the cleansing period had not lapsed. Finally, the State submits that it proved that the defendant had possession of the two firearms located in the mobile home located adjacent to her home.

In evaluating the sufficiency of the evidence to support a conviction, a reviewing court must determine whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found proof beyond a reasonable doubt of each of the essential elements of the crime charged. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Captville, 448 So.2d 676, 678 (La.1984). Additionally, where circumstantial evidence forms the basis of the conviction, the evidence must exclude every reasonable hypothesis of innocence, “assuming every fact to be proved that the evidence tends to prove.” La. R.S. 15:438; see State v. Neal, 2000-0674 p. 9 (La.6/29/01), 796 So.2d 649, 657, cert. denied, 535 U.S. 940, 122 S.Ct. 1323, 152 L.Ed.2d 231 (2002). The statutory requirement of La. R.S. 15:438 “works with the Jackson constitutional sufficiency test to evaluate whether all evidence, direct and circumstantial, is sufficient to prove guilt beyond a reasonable doubt to a rational jury.” Neal, 2000-0674 p. 9, 796 So.2d at 657.

State v. Draughn, 05-1825, p. 7 (La.1/17/07), 950 So.2d 583, 592, cert. denied, 552 U.S. 1012, 128 S.Ct. 537, 169 L.Ed.2d 377 (2007).

| ¡-.Possession of a firearm by a convicted felon is governed by La. R.S. 14:95.1, which provides that it is unlawful for any person who has been convicted of certain enumerated felonies to possess a firearm. However, La. R.S. 14:95.1(C)(1) states that this section “shall not apply to any person who has not been convicted of any felony for a period of ten years from the date of completion of sentence, probation, parole, or suspension of sentence.”

In State v. Recard, 97-754, p. 9 (La.App. 3 Cir. 11/26/97), 704 So.2d 324, 329, writ denied, 97-3187 (La.5/1/98), 805 So.2d 200, this court held:

To convict Defendant of possession of a firearm by a convicted felon, the State must prove beyond a reasonable doubt: (1) the possession of a firearm; (2) a previous conviction of an enumerated felony; (3) absence of the ten-year statutory period of limitation; and, (4) general intent to commit the offense. La. R.S. 14:95.1; State v. Husband, 437 So.2d 269 (La.1983); State v. Tatum, 27,301 (La.App. 2 Cir. 9/27/95); 661 So.2d 657.

“The State must prove the felony conviction and that ten years has not elapsed since the date of completion of punishment. Evidence of the initial sentence imposed is not sufficient to establish the date of completion of punishment.” State v. Knight, 99-138, p. 4 (La.App. 5 Cir. 6/30/99), 738 So.2d 1179, 1181 (citations omitted).

In regard to a prior enumerated felony committed in Louisiana, this Court observed in State v. Miller, 499 So.2d at 283, that discharge from supervision of probation can take place earlier than the theoretical date on which a probationary period would have terminated. Accordingly, we concluded in Miller that (under the circumstances presented therein) the date of completion of punishment had not been proved beyond a reasonable doubt based upon the state’s evidence which established only the term of the probationary sentence imposed for the prior conviction, i.e., the theoretical date on which the sentence would have terminated.

State v. Dennis, 569 So.2d 566, 568-69 (La.App. 1 Cir.1990) (footnote omitted).

|fiThe date of the defendant’s prior conviction was September 5, 1995. The current offense occurred on May 30, 2008, and the bill of information was filed on July 24, 2008. It is clear that the offense at issue occurred more than ten years after the prior offense. Although the State presented proof of the probationary term in the case at bar, it failed to prove the date of completion of punishment. Thus, the State failed to prove beyond a reasonable doubt that the ten-year cleansing period had not lapsed.

Based on the State’s failure to prove the ten-year cleansing period had not lapsed, one of the elements of proof the State was required to establish beyond a reasonable doubt, we reverse the defendant’s conviction and vacate her sentence. Because we have determined that the defendant’s conviction be reversed, we need not address the State’s failure to prove the remaining elements of the offense.

DECREE

The defendant’s conviction is reversed and sentence is vacated.

CONVICTION REVERSED; SENTENCE VACATED.

       Honorable David E. Chatelain participated in this decision by appointment of the Louisiana Supreme Court as Judge Pro Tempore.

      . The certified records from the Fourteenth Judicial District, Calcasieu Parish, which are contained in State’s Exhibit 2, indicate that on September 5, 1995, a Melanie Hanner pled guilty to the charge of possession of marijuana with intent to distribute. Thus, for purposes of this opinion, we will assume that the State made a typographical error when listing the date of the defendant’s prior felony conviction as September 15, 1995, in its Motion to Amend Bill of Information.

      . According to a report prepared by Detective Clark, which was provided to counsel for the defendant in discovery, Ms. Childress had temporary custody of the defendant's young daughter, and the dispute occurred when the defendant took her daughter and refused to return her to Ms. Childress's custody.

      . A different rule is applicable when the defendant's prior conviction and his subsequent conviction occur within the ten-year period. See State v. Hicks, 98-1231 (La.App. 5 Cir. 3/30/99), 733 So.2d 652 (court can look to record of proceeding for proof that predicate offense fell within ten-year period).

      . In accordance with La.Code Crim.P. art. 920, this court reviews all appeals for errors patent on the face of the record. After reviewing the record, we find the trial court erred in ordering payment of a fine and costs in installments within one year of release from incarceration. As provided in La.Code Crim.P. art. 888, the fine and costs are required to be payable immediately if imposed as part of the principal sentence, as they were in this case. Nevertheless, our finding that the defendant’s conviction be reversed and her sentence be vacated renders the patent error moot.