text:
    Lourdes M. BURKE v. LAFAYETTE INSURANCE COMPANY, et al.
    No. 2009-CC-2711.
    Supreme Court of Louisiana.
    Feb. 26, 2010.
   In re Burke, Lourdes M.; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Civil District Court Div. C, No. 06-11932; to the Court of Appeal, Fourth Circuit, No. 2009-C-0583.

Denied.


source: Caselaw Access Project

license: Public Domain

text:
    Shyra ALLEN v. DEPARTMENT OF POLICE.
    No. 2009-C-2714.
    Supreme Court of Louisiana.
    Feb. 26, 2010.
   In re Allen, Shyra; — Plaintiff; Applying For Writ of Certiorari and/or Review, Parish of Orleans, City Civil Service Commission Orleans, No. 7089; to the Court of Appeal, Fourth Circuit, No. 2009-CA-0589.

Denied.


text:
    Rebecca SEROU, et al. v. Gordon P. SEROU, Jr.
    No. 2009-CC-2715.
    Supreme Court of Louisiana.
    Feb. 26, 2010.
   In re Serou Jr., Gordon P.; — Defendant; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Civil District Court Div. G, No. 05-4088; to the Court of Appeal, Fourth Circuit, No. 2009-C-1228.

Writ denied. Motion to file opposition granted.


author: KNOLL, J.,

text:
    Susan Elizabeth Jackson PICCIONE v. Richard James PICCIONE.
    No. 2009-CJ-2718.
    Supreme Court of Louisiana.
    Feb. 26, 2010.
   In re Piccione, Susan Elizabeth Jackson;' — Plaintiff; Applying For Writ of Cer-tiorari and/or Review, Parish of Lafayette, 15th Judicial District Court Div. M, No. 99-3217; to the Court of Appeal, Third Circuit, No. 09-300.

Denied.

KNOLL, J.,

additionally concurs in the denial. The court of appeal reached the correct result in finding the father states a cause of action for a modification of physical custody. Any discussion regarding the applicable burden of proof at the hearing is dicta.

WEIMER, J., would grant.


text:
    Bennie PATTERSON v. Carlo DeMATTEO, Louana Bracato DeMatteo, CLLC Investments, Inc. & ABC Insurance Company.
    No. 2009-C-2720.
    Supreme Court of Louisiana.
    Feb. 26, 2010.
   In re Patterson, Bennie; — Plaintiff; Applying For Writ of Certiorari and/or Review, Parish of Jefferson, 24th Judicial District Court Div. A, No. 656^415; to the Court of Appeal, Fifth Circuit, No. 09-CA-326.

Denied.


text:
    Antonio TYSON v. James LeBLANC-Secretary, Jeffrey Travis Warden.
    No. 2009-CP-2733.
    Supreme Court of Louisiana.
    Feb. 26, 2010.
   In re Tyson, Antonio; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. A, No. 566,301; to the Court of Appeal, First Circuit, No. 2009 CA 0799.

Denied.


text:
    Leonard A. RADLAUER v. INSURANCE UNDERWRITERS LIMITED, Great Northern Insurance Company, Gerald L. Murray, and Insurance Underwriters Limited.
    No. 2009-CC-2735.
    Supreme Court of Louisiana.
    Feb. 26, 2010.
   In re Radlauer, Leonard A.; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. J, No. 628-616; to the Court of Appeal, Fifth Circuit, No. 09-C-778.

Denied.


text:
    Nolan ESTOPINAL, et al. v. PARISH OF ST. BERNARD, et al.
    No. 2009-CC-2736.
    Supreme Court of Louisiana.
    Feb. 26, 2010.
   In re Barowka & Bonura Engineers & Consultants LLC; — Defendant; Applying For Supervisory and/or Remedial Writs, Parish of St. Bernard, 34th Judicial District Court Div. C, No. 113-313; to the Court of Appeal, Fourth Circuit, No. 2009-C-1323.

Denied.


text:
    Raymond H. HAYES v. Kathleen C. HAYES.
    No. 2009-CC-2740.
    Supreme Court of Louisiana.
    Feb. 26, 2010.
   In re Hayes, Kathleen C.; — Defendant; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Civil District Court Div. M, No. 2009-01404; to the Court of Appeal, Fourth Circuit, No. 2009-C-1361.

Motion denied. Writ denied.


text:
    MAPP CONSTRUCTION, LLC v. SOUTHGATE PENTHOUSES, LLC; R.W. Day Development, LLC; Robert W. Day; Janice E. Day; and Lionsway, LLC.
    No. 2009-C-2743.
    Supreme Court of Louisiana.
    Feb. 26, 2010.
   In re Day, Janice E.; Day, Robert W.; R.W. Day Development LLC; Southgate Penthouses LLC et al.; — Defendant(s); Applying For Writ of Certiorari and/or Review, Parish of E. Baton Rouge, 19th Judicial District Court Div. F, No. 544,997; to the Court of Appeal, First Circuit, No. 2009 CA 0850.

Denied.


text:
    Robert Scott JARRELL and Venessa Jarrell v. John STECK, M.D.
    No. 2009-CC-2744.
    Supreme Court of Louisiana.
    Feb. 26, 2010.
   In re Jarrell, Robert Scott et al.; Jar-rell, Venessa; — Plaintiff(s); Applying For Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. P, No. 613-825; to the Court of Appeal, Fifth Circuit, No. 09-C-809.

Denied.


text:
    STATE of Louisiana v. Rigoberto FUNES, et al.
    No. 2009-KK-2754.
    Supreme Court of Louisiana.
    Feb. 26, 2010.
   In re Funes, Rigoberto et al.; — Defendant; Applying For Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. E, No. OS-5641; to the Court of Appeal, Fifth Circuit, No. 09-K-902.

Denied.


text:
    STATE of Louisiana v. Felton BERNARD.
    No. 2009-KK-2756.
    Supreme Court of Louisiana.
    Feb. 26, 2010.
   In re Bernard, Felton; — Defendant; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. H, No. 469-092; to the Court of Appeal, Fourth Circuit, No. 2009-K-1380.

Denied.


text:
    Percy PAYNE, Jr. v. Keith MYERS, Individually, Myers & Sons Enterprises, Inc., and Fair City Event Center, LLC.
    No. 2009-C-2757.
    Supreme Court of Louisiana.
    Feb. 26, 2010.
   In re Fair City Event Center LLC; Myers & Sons Enterprises Inc.; Myers, Keith et al.; — Defendant(s); Applying For Writ of Certiorari and/or Review, Parish of Orleans, Civil District Court Div. D, No. 2006-1309; to the Court of Appeal, Fourth Circuit, Nos. 2008-CA-0396, 2009-CA-0145.

Denied.

VICTORY, J., would grant.


text:
    Gloria Arline JONES v. Marilyn MITCHELL, Aneesah Richardson, Fleming Methodist Church and Rev. Larry Ream.
    No. 2009-C-2759.
    Supreme Court of Louisiana.
    Feb. 26, 2010.
   In re Jones, Gloria Arline; — -Plaintiff; Applying For Writ of Certiorari and/or Review, Parish of Tangipahoa, 21st Judicial District Court Div. B, No. 2004-002781; to the Court of Appeal, First Circuit, No. 2009 CA 0440.

Denied.


text:
    TRANSCONTINENTAL GAS PIPE LINE CORPORATION v. Cynthia BRIDGES, Secretary of the Department of Revenue, State of Louisiana and the State of Louisiana.
    No. 2009-C-2764.
    Supreme Court of Louisiana.
    Feb. 26, 2010.
   In re Bridges, Cynthia; Louisiana State of; — Defendant(s); Applying For Writ of Certiorari and/or Review, Parish of E. Baton Rouge, 19th Judicial District Court Div. F, No. 562125; to the Court of Appeal, First Circuit, No. 2009 CA 0421.

Denied.


text:
    J. Quentin SIMON v. MACRO, INC.
    No. 2009-C-2765.
    Supreme Court of Louisiana.
    Feb. 26, 2010.
   In re Simon, J. Quentin; — Plaintiff; Applying For Writ of Certiorari and/or Review, Parish of Lafayette, Lafayette City Court, No. 2008CV00938; to the Court of Appeal, Third Circuit, No. 09-346.

Denied.


text:
    Luke DELAHOUSSAYE v. LIVE OAK GARDENS, LTD.
    No. 2009-C-2771.
    Supreme Court of Louisiana.
    Feb. 26, 2010.
   In re Delahoussaye, Luke; — Plaintiff; Applying For Writ of Certiorari and/or Review Office of Workers’ Compensation — District 4, No. 07-01305; to the Court of Appeal, Third Circuit, No. 09-246.

Denied.


text:
    Carleen WILLIS v. RAPIDES PARISH COMMUNICATION DISTRICT a/k/a “911”.
    No. 2009-CC-2772.
    Supreme Court of Louisiana.
    Feb. 26, 2010.
   In re 911; Rapides Parish Communications District a/k/a; — Defendant(s); Applying For Supervisory and/or Remedial Writs, Parish of Rapides, 9th Judicial District Court Div. A, No. 230,022; to the Court of Appeal, Third Circuit, No. CW 09-01087.

Denied.


text:
    MAPP CONSTRUCTION, LLC v. SOUTHGATE PENTHOUSES, LLC; R.W. Day Development, LLC; Robert W. Day; Janice E. Day; and Lionsway, LLC.
    No. 2009-C-2774.
    Supreme Court of Louisiana.
    Feb. 26, 2010.
   In re MAPP Construction LLC; — -Plaintiff; Applying For Writ of Certiorari and/or Review, Parish of E. Baton Rouge, 19th Judicial District Court Div. F, No. 544,997; to the Court of Appeal, First Circuit, No. 2009 CA 0850.

Denied.


text:
    Billie HUNT v. EAST BATON ROUGE PARISH SCHOOL BOARD.
    No. 2009-C-2775.
    Supreme Court of Louisiana.
    Feb. 26, 2010.
   In re East Baton Rouge School Bd.; Hunt, Billie; — Defendant(s); Applying For Writ of Certiorari and/or Review, Parish of E. Baton Rouge, 19th Judicial District Court Div. 0, No. 561-771; to the Court of Appeal, First Circuit, No. 2009 CA 0220.

Denied.


text:
    Janice RIKER v. POPEYE'S FRIED CHICKEN.
    No. 2009-C-2776.
    Supreme Court of Louisiana.
    Feb. 26, 2010.
   In re Riker, Janice; — Plaintiff; Applying For Writ of Certiorari and/or Review Office of Workers’ Comp. — Dist. 06, No. 07-07567; to the Court of Appeal, First Circuit, No. 2009 CA 0527.

Denied.

JOHNSON, J., would grant.


text:
    RAPIDES PARISH POLICE JURY v. CATAHOULA DUCK CLUB & LODGE L.L.C., et al.
    No. 2009-C-2778.
    Supreme Court of Louisiana.
    Feb. 26, 2010.
   In re Rapides Parish Police Jury;— Plaintiff; Applying For Writ of Certiorari and/or Review, Parish of Rapides, 9th Judicial District Court Div. A, No. 231,119; to the Court of Appeal, Third Circuit, No. 09-64.

Denied.


text:
    Jessica GATLIN, Individually and on Behalf of the Minor Child, Joey Collins, Jr.; Jerry Nathiel Nelson and Catrina Trayshon Sterling-Nelson, Individually and on Behalf of the Minor Children, Taylor Fayer Nelson, Jerry Nathaniel Nelson, and Jacob Neil Nelson v. Guy A. KLEINHEITZ, Wheels Inc., Varian Medical Systems, Inc., ABD Insurance & Financial Services, Estate of Sharon M. Bolton, Evelyn J. Johnson, and Allstate Indemnity Company.
    No. 2010-C-0084.
    Supreme Court of Louisiana.
    Feb. 26, 2010.
   In re Bolton Estate of, Sharon M.; Johnson, Evelyn J.; Gatlin, Jessica; Nelson, Jerry Nathiel; Sterling-Nelson, Ca-trina Trayshon; — Defendant(s); Applying For Writ of Certiorari and/or Review, Parish of E. Baton Rouge, 19th Judicial District Court Div. F; No. 558,417; to the Court of Appeal, First Circuit, No. 2009 CA 0828.

Denied.

KNOLL, J., would grant.

CLARK, J., would grant.


text:
    STATE ex rel. Jerrod A. WILSON v. STATE of Louisiana.
    No. 2010-KH-0183.
    Supreme Court of Louisiana.
    Feb. 26, 2010.
   In re Wilson, Jerrod A.; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Jefferson Davis, 31st Judicial District Court Div. 0, Nos. CR1883-96, CR330-97; to the Court of Appeal, Third Circuit, No. KH 09-01106.

Denied. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189; La.C.Cr.P. art. 930.3; State ex rel. Melinie v. State, 93-1380 (La.1/12/96), 665 So.2d 1172. Cf. La. C.Cr.P. art. 930.4(D).


author: FREDERICKA HOMBERG WICKER, Judge. FREDERICKA HOMBERG WICKER, Judge.

text:
    STATE of Louisiana v. Terrence C. HALL.
    No. 09-KA-1.
    Court of Appeal of Louisiana, Fifth Circuit.
    May 12, 2009.
    Rehearing Granted June 1, 2009.
    Opinion on Rehearing Nov. 10, 2009.
    Paul D. Conniek, Jr., District Attorney, Terry M. Boudreaux, Desiree M. Valenti, Assistant District Attorneys, Parish of Jefferson, Gretna, LA, for Plaintiff/Appellant.
    Joseph A. Marino, Jr., Attorney at Law, Gretna, LA, for Defendant/Appellee.
    Panel composed of Judges MARION F. EDWARDS, CLARENCE E. McMANUS, and FREDERICKA HOMBERG WICKER.
   FREDERICKA HOMBERG WICKER, Judge.

li/The State of Louisiana appeals a judgment granting the defendant’s “Motion to Quash on the Basis of Double Jeopardy.” For the foregoing reasons, we dismiss the appeal.

FACTS AND PROCEDURAL HISTORY

Because trial in this matter had not commenced, the facts in the record are sparse. On December 8, 2006, Jefferson Parish Sheriffs Office performed an investigatory stop on the defendant. After initial cooperation, the defendant allegedly struck a deputy and fled the scene. A pistol was recovered from a jacket that the defendant had disposed of while fleeing. The defendant was arrested shortly thereafter at his mother’s house.

On February 27, 2007, the defendant was charged by bill of information with one count of illegal carrying of a weapon, one count of resisting an officer, and one count of battery of a police officer, violations of La. R.S. 14:95, La. R.S. 14:108.1 A, and La. R.S. 14:43.2 respectively. On April 12, 2007, the defendant pleaded guilty as charged to all three counts in the February 27 bill of information.

|o,On June 7, 2007, the defendant was charged by bill of information with one count possession of a firearm by a convicted felon, a violation of La. R.S. 14:95.1. He pleaded not guilty at arraignment. On July 10, 2008, the defendant filed a Motion to Quash on the Basis of Double Jeopardy. In the memorandum accompanying the Motion, the defendant argued that trying him on the possession of a firearm by a convicted felon charge would expose him to double jeopardy because he had already pled guilty to a charge of illegal carrying of a weapon arising out of the same course of conduct.

At the hearing on the motion on August 21, 2008, the trial judge informed defense counsel that he had not yet read his motion, but that he would read it and render judgment that day. Defense counsel argued that defendant had already “pled to it” in Second Parish Court and, therefore, trying the defendant on the charge of possession of a firearm by a convicted felon would be a double jeopardy violation. The prosecutor noted that in the event the motion was not quashed, they would need a trial date, and the trial judge agreed to issue a date.

On August 21, 2008, the trial judge issued a judgment granting the defendant’s Motion to Quash on the Basis of Double Jeopardy. The state filed a Motion for Appeal, Assignment of Error, and Designation of Record on October 6, 2008. The trial court granted the Motion for Appeal, Assignment of Error, and Designation of Record on October 22, 2008.

We decline to consider the merits of this appeal because the Motion for Appeal, Assignment of Error, and Designation of Record was not timely filed.

La. C. Cr. P. art. 914 provides as follows:

A motion for an appeal may be made orally in open court or by filing a written motion with the clerk. The motion must be made no later than fifteen days after the rendition of the judgment or ruling from which the appeal is taken. The motion shall be entered in the minutes of the court.

|,Jemphasis added)

In the instant case, judgment was rendered on August 21, 2008. The state’s Motion for Appeal, Assignment of Error, and Designation of Record was filed on October 6, 2008, 46 days after rendition of the judgment. In State v. Veazey, 337 So.2d 1163 (La.1976), the state’s motion for an appeal was made on March 4, 1976, over four months after the order to quash the defendant’s indictment was recorded in the court minutes. The state argued that its appeal was timely because it was taken within fifteen days of the date on which it received written notice of the trial judge’s ruling. The Supreme Court disagreed, noting:

It is the state’s contention that when a matter is taken under advisement, written notice of the judgment or ruling subsequently rendered should be sent to the interested parties. The state further argues that the time for appealing from such judgments or rulings should commence running only from the date of receipt of notice thereof. We are asked to engraft these rules, borrowed from the Code of Civil Procedure (Code Civ.P. arts. 1911, 1913 and 2123), onto the clear statutory language of Code Crim.P. art. 914. This we cannot do. While the provisions suggested by the state might indeed prove beneficial supplements to the Code of Criminal Procedure, that is a matter which addresses itself to the legislature. In the absence of statutory authority to the contrary, we will continue to follow the directive of article 914 that motions for appeal must be made no later than fifteen days after the rendition of the judgment or ruling from which the appeal is taken.
Veazey, 337 So.2d at 1164.

The same logic applies in the instant case. The state had 15 days from rendition of the judgment granting the Motion to Quash on the Basis of Double Jeopardy to file a motion for appeal. It did not file the Motion for Appeal, Assignment of Error, and Designation of Record until 46 days after rendition of the judgment granting the Motion to Quash on the Basis of Double Jeopardy. Accordingly, the Motion for Appeal, Assignment of Error, and Designation of Record is untimely and we cannot consider the merits of the appeal.

^CONCLUSION AND DECREE

For the foregoing reasons, the appeal is dismissed.

APPEAL DISMISSED.

APPLICATION FOR REHEARING GRANTED

|, We grant rehearing in the case for the purpose of considering the correctness of our finding that the state’s appeal was untimely.

Accordingly,

IT IS ORDERED that the defendant/appellee be and is given until June 5, 2009 to file a brief addressing the correctness of our finding that the state’s appeal was untimely.

IT IS FURTHER ORDERED that the state be and is given until June 12, 2009 to file a response to the defendant/appellee’s June 5, 2009 brief.

IT IS FINALLY ORDERED that on June 15, 2009 this matter be and is hereby submitted on the briefs and the state’s application for rehearing.

ON REHEARING

FREDERICKA HOMBERG WICKER, Judge.

|2We granted the state’s application for rehearing to determine whether the state’s appeal was timely filed. For the reasons that follow, we hold that our previous finding that the state’s appeal was untimely filed was correct. Accordingly, we dismiss this appeal.

The facts and procedural history of this appeal are described in State v. Hall, 09-01 (La.App. 5 Cir. 5/12/09), 28 So.3d 281, 2009 WL 1324206. The facts and procedural history pertinent to this rehearing are as follows.

The defendant pleaded guilty to one count of illegal carrying of a weapon on April 12, 2007. The state charged the defendant by bill of information with one count of possession of a firearm by a convicted felon on June 7, 2007. The defendant thereafter filed a motion to quash contending that charging him on the possession of a firearm by a felon charge would expose him to double jeopardy because he had already pleaded guilty to the count of illegal carrying of a weapon arising out of the same course of conduct. By judgment dated August 21, 2008, the trial court granted the motion to quash. The state filed a motion for appeal on | oOctober 6, 2008. We dismissed the appeal because the state filed the motion for appeal 46 days after rendition of the judgment granting the defendant’s motion to quash. However, in our previous opinion, we erroneously quoted from an outdated version of La. C. Cr. P. art. 914. The previous version of La. C. Cr. P. art. 914 provided that a motion for appeal “must be made no later than fifteen days after the rendition of the judgment or ruling from which the appeal is taken.” In addition, the state contended that we overlooked an oral motion for appeal that it filed on September 15, 2008. We granted this rehearing to consider these issues.

After we granted rehearing, the state supplemented the record with a transcript of the proceedings held on September 15, 2008. That day, the prosecutor told the trial judge in open court “we objected [to the trial court’s August 21, 2008 ruling], and note our intent to seek writs, in the event that I have to.” (emphasis added). The prosecutor subsequently asked for a “return date on [the writ].” The trial court responded “September 29th.”

La. C. Cr. P. art. 914 currently provides:

A. A motion for appeal may be made orally in open court or by filing a written motion with the clerk. The motion shall be entered in the minutes of the court.
B. The motion for appeal must be made no later than:
(1) Thirty days after the rendition of the judgment or ruling from which the appeal is taken.
(2) Thirty days from the ruling on a motion to reconsider sentence filed pursuant to Article 881.1, should such motion be filed.
(emphasis added)

The state contends that the prosecutor’s use of the phrase “intent to seek writs” on September 15, 2008 was sufficient to constitute an oral motion for appeal ^pursuant to La. C. Cr. P. art. 914(A). The defendant contends that the state’s “intent to seek writs” was insufficient to constitute an oral motion for appeal. The state additionally argues that the defendant was not prejudiced by his failure to specifically seek an appeal. The state’s motion for appeal was filed 46 days after rendition of the judgment granting the defendant’s motion to quash. However, the proceedings of September 15, 2008 took place 24 days after rendition of the judgment. Thus, if the state’s September 15 “intent to seek writs” constituted an oral motion for appeal, the state’s appeal was timely. If the state’s intent to seek writs did not constitute an oral motion for appeal, the state’s appeal was not timely filed. We have thoroughly reanalyzed the merits of the state’s position and the defendant’s position.

The defense relies upon State v. Garrus, 2002-1940 (La.App. 4 Cir. 6/4/03), 849 So.2d 796 for support. The Garrus defendant was charged with one count of unauthorized use of a motor vehicle, a violation of La. R.S. 14:68.4. The state entered a nolle prosequi on April 2, 2002 and filed a second bill of information charging the defendant three days later. Id. at 797. On April 30, 2002, the defense filed a motion to quash the second bill of information. Id. The trial court granted the motion to quash that same day. Id. The state orally noted its intent to seek writs immediately after the trial court granted the defendants motion to quash. Id. at 798. The docket minutes indicated that on the same day the trial court granted the motion to quash, it allowed the state until May 29, 2002 to take a writ. Id. On May 29, 2002, the state filed a notice of intent to file an appeal, followed by a motion for appeal on June 10, 2002. The court granted the motion for appeal.

The state maintained that it adhered to the time constraints of La. C. Cr. P. art. 914 because it placed the defense on notice that it would seek review of the |sorder quashing the proceedings on the same day the trial court rendered the ruling. The state also contended that neither the trial court nor the defense objected to or claimed prejudice when the state orally noticed its intent to seek a -writ. Id. The court disagreed, concluding:

Considering the time limitation imposed by La. C. Cr. P. art. 914 and the procedural posture of this case in relation to State v. Gray, supra, it appears the State’s appeal is untimely. Accordingly, we dismiss the State’s appeal as untimely under C. Cr. P. art. 914 and State v. Gray, 98-2902 (La.5/7/99), 740 So.2d 1291.
Id. at 799.

The defendant also relies on State v. Gray, 1998-0347 (La.App. 4 Cir. 10/21/98), 766 So.2d 550 for support. In Gray, three defendants were charged with various counts of second degree battery and aggravated battery, violations of La. R.S. 14:34.1 and La. R.S. 14:34 respectively. On June 24, 1996 the trial court refused to grant the state a continuance and the state dismissed the charges against each defendant. The state thereafter reinstated the charges against the defendants. The three defendants each filed motions to quash. Id. at 550-51. On November 19, 1996, the trial court granted the motions to quash following a hearing. Id. at 551. The trial court gave the state until December 19 to file for an appeal. On December 20, 1996, the State filed a motion for an appeal, which was granted by the trial court that same day. On appeal, the defendant contended that the state’s motion for an appeal was untimely because it was filed 31 days after the motion to quash was granted. The Fourth Circuit disagreed, concluding:

The defense fails to argue that the State’s motion for an appeal was untimely, and thus it will not be considered. Errors that are not briefed are considered abandoned. Uniform Rules-Courts of Appeal, Rule 2-12.4
Id. at n. 1

The Fourth Circuit reversed the district court’s judgment on the merits. Id. at 554. The defendants filed a writ with the Louisiana Supreme Court. The ^Supreme Court granted the writ, vacated the judgment of the district court. The Court reasoned:

The district court’s judgment became final when the state failed to take a timely appeal from the disputed ruling. State v. Veazey, 337 So.2d 1163 (La. 1976).
State v. Gray, 1998-2902 (La.5/7/99), 740 So.2d 1291.

The state relies on State v. Armant, 02-907 (La.App. 5 Cir. 1/28/03), 839 So.2d 271 for support. The Armant defendant was found guilty as charged of one count of disturbing the peace and one count of resisting an officer. She was sentenced immediately thereafter on April 8, 2002. Id. at 273. The defendant’s counsel “requested that the court note his intention to take supervisory writs” without mentioning an appeal. Id. Counsel for the defendant filed a written motion for appeal on April 17, 2002, nine days after sentencing. At the time Armant was decided, La. C. Cr. P. art. 914(B) provided that a motion for appeal had to be made no later than five days after rendition of the judgment from which the appeal was taken or five days from the ruling on a motion to reconsider sentence filed pursuant to La. C.C.P. art. 881.1. Thus, if the Armant defendant’s oral notice of intention to seek supervisory relief constituted an oral motion for appeal, the motion for appeal would have been timely. If the defendant’s intention to file a “writ application” did not constitute a motion for appeal, the motion was untimely. We chose to construe the defendant’s oral notice to seek supervisory relief as an oral motion for appeal, noting:

Rather than dismissing the appeal and remanding the case for defendant to seek reinstatement of her appeal rights by application for post-conviction relief, we construe defendant’s oral notice of intention to seek supervisory relief as an oral notice of appeal. Absent a claim of prejudice by the State, such a construction is in the interest of judicial economy and honors the premise that the law favors the right to appeal.
Id. at 274.

|7None of the previously mentioned cases is precisely similar to the facts of this case. The state would have us follow Armant. However, the states reliance on Armant is misplaced because in Armant, the defense, not the state, noticed its intent to seek writs rather than an appeal. In Armant, this Court implied that we would construe the defendant’s application for writs as an oral motion for appeal “[r]ather than dismissing the appeal and remanding the case for defendant to seek reinstatement of her appeal rights by application for post-conviction relief.” Armant, 839 So.2d at 274. The state cannot reinstate its right to an out-of-time appeal through an application for post-conviction relief. See State v. Counterman, 475 So.2d 336, 339 (La.1985) (explaining how the appropriate procedural vehicle for a criminal defendant to seek exercise of the right to appeal after the legal delay has expired is by application for post-conviction relief). Thus, this Court’s justification for treating the defendant’s request for supervisory jurisdiction as an oral motion for appeal in Amiant is not applicable to this case. Moreover, the Armant defendant was convicted of two misdemeanors, which are not normally appealable. La. Const, art. 5, § 10. See also La. C. Cr. P. art. 912.1; La. C. Cr. P. art. 779; La. R.S. 14:103.

In Garrus and Gray, the state filed the appeal, but the defendant specifically contested the timeliness of the appeal. In the instant ease, the defendant did not specifically contest the timeliness of the appeal. In Gray, the Fourth Circuit declined to address the timeliness of the appeal because the defendant did not brief the issue on appeal. See Uniform Rules-Courts of Appeal, Rule 2-12.4. However, |sthe Supreme Court granted the defendant’s writ and vacated the judgment of the court of appeal. Thus, in Gray, the Supreme Court did not consider it relevant that the defendant failed to brief whether the state’s appeal was timely.

We believe that the facts of this case are most similar to the facts in Garrus and Gray. In Garrus, Gray, and this case, the state placed the defense on notice that it would seek review of an adverse judgment. The only important distinction we can discern between the facts of Garrus and Gray and the facts of this case is that in Gams and Gray, the defendant specifically objected to the state’s appeal whereas here the defendant did not. However, as previously mentioned, the propriety of this argument was considered and rejected in the Supreme Court’s disposition of Gray.

In addition, La. C. Cr. P. art. 914(A) clearly states that a “motion for appeal may be made orally in open court or by filing a written motion with the clerk.” Rules for writ applications are governed by other sources of law, such as the Uniform Rules, Courts of Appeal. Similarly, La. C. Cr. P. art. 914(A) states that “[t]he motion [for appeal] shall be entered in the minutes of the court.” In this case, the minutes of September 15, 2008 indicate that the state noticed its intent to “file Writs.”

The state contends that it is “common practice of this Court to convert improperly filed appeals to writ applications and vice versa.” (state’s reply brief at 4) (citing Patterson v. Fed Ex Ground Package System, Inc., 08-1297 (La.App. 5 Cir. 3/24/09), 10 So.3d 794). The state’s argument is meritless for three reasons. First, the Patterson case does not stand for the proposition that it is a common practice of this Court to convert improperly filed appeals to writ applications and vice versa. Rather, Patterson noted that that “by en banc meeting of December 9, |92004, this Court decided that converting appeals to writs will be left to the discretion of the panel.” Patterson, 10 So.3d at 796 (emphasis added). Patterson contains no language stating that converting writs to appeals will be left to the discretion of the panel.

Second, this Court did not treat the defendant’s intention to treat the “writ” as an oral motion for appeal in Armant because we “frequently convert improperly filed appeals to writ applications.” The Armant panel treated the writ as an oral motion for appeal “[rjather than dismissing the appeal and remanding the case for defendant to seek reinstatement of her appeal rights by application for post-conviction relief’ and noted that it was doing so “in the interest of judicial economy.” Armant, 839 So.2d at 274. These concerns are not applicable to this case.

Third, and most pertinently, the state did not file a writ in this case. It filed a motion for appeal. The state’s action was therefore proper because the trial court granted the defendant’s motion to quash. See La. C. Cr. P. art. 912(B) (“[a]dverse judgments or rulings from which the state may appeal include ... (1) A motion to quash an indictment.”) (emphasis added). The issue before us is not that the state filed an appeal when it should have filed a writ or vice versa. It is rather that the state waited too long before filing the motion for appeal.

Finally, we note that we agree with the state that the defendant did not suffer any prejudice in the instant case. We also agree with the state that it put the defendant on notice that it intended to seek review of the trial court’s ruling on September 15, 2008. The state contends that this is sufficient for this Court to consider the merits of this appeal. The facts and ultimate dispositions in Gray and Garrus counsel that the opposite result is the correct one. The express language of La. C. Cr. P. art. 914 counsels the same.

[ ^CONCLUSION AND DECREE

For the foregoing reasons, the appeal is dismissed.

APPEAL DISMISSED.

      . This transcript was not contained in the original appellate record.

      . In this respect, the Gray opinion is not perfectly clear. In the body of the opinion, the court stated that "the defendants argued that the State's appeal was not timely filed, and, thus, this Court should refuse to hear the case." Gray, 766 So.2d at 551. However, in the footnote accompanying that portion of the opinion, the court noted that "[t]he defense fails to argue that the State's motion for an appeal was untimely, and thus it will not be considered. Errors that are not briefed are considered abandoned. Uniform Rules-Courts of Appeal, Rule 2-12.4.” Id. at n. 2. We interpret this to mean that the defendants argued that the state’s appeal was untimely either before it was granted or at the same time that the motion was granted, but chose not to brief the issue on appeal. But see id. at 554 ("[ljegardless of whether or not the state should have sought an appeal or sought writs, this application was untimely because the state missed the December 19, 1996, deadline to seek relief. The defendant does argue this in her brief, and as such, relief should be denied.”) (Plolkin, J., dissenting).


author: WALTER J. ROTHSCHILD, Judge.

text:
    Claudia W. WASHINGTON v. CONSOLIDATED WATER WORKS DISTRICT NO. 1 OF the PARISH OF JEFFERSON and Consolidated Sewerage District No. 1 of the Parish of Jefferson.
    No. 09-CA-357.
    Court of Appeal of Louisiana, Fifth Circuit.
    Oct. 27, 2009.

      Joy G. Cressend, Attorney at Law, Harvey, Louisiana, for Plaintiff/Appellee.
    Claudia Washington, In Proper Person, Harvey, Louisiana, Plaintiff/Appellee.
    Michael F. Nolan, Attorney at Law, Me-tairie, Louisiana, for Defendant/Appellant.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., CLARENCE E. McMANUS, and WALTER J. ROTHSCHILD.
   WALTER J. ROTHSCHILD, Judge.

|2Following a bench trial in this slip and fall case, the trial court rendered judgment in favor of plaintiff, Claudia Washington and against Consolidated Water Works District No. 1 of the Parish of Jefferson. Both parties now appeal. We affirm.

Facts and Procedural History

On August 29, 2002, Claudia Washington filed the instant petition for damages against Consolidated Water Works District No. 1 of the Parish of Jefferson (“Water Works”) and Consolidated Sewerage District No. 1 of the Parish of Jefferson (“Sewerage”) alleging that on September 15, 2001 she slipped in standing water and fell while attempting to place mail into her mailbox. She alleges that the accumulated water was a longstanding problem and that she reported it to the Sewerage and Water Board several times in the six week period before her injury but nothing was done to remedy the situation. She alleges that defendants were negligent in creating |sthe hazard and in failing to correct it. Defendants answered the petition, alleging that they had no notice of the alleged defect and that the accident was a result of plaintiff’s own negligence.

Trial of this matter was held on September 30, 2008 and the parties stipulated to the photographs of the accident area, plaintiffs medical bills and the work orders from the Sewerage and Water Board. Plaintiff testified at trial that on September 15, 2001, she walked to the mailbox in front of her house and fell into a hole containing muddy water which was in front of the mailbox. She testified that the water had been accumulating in this area since July of 2001, and that she could not get to her mailbox without encountering it. She stated that she tried to avoid it by waiting for the mailman to hand him mail directly, but on this particular day she missed him and needed to walk to the box.

Plaintiff testified that she called the Sewerage and Water Board several times using the number located on her bill to report this problem. She stated that she called once or twice a week and was told she was placed on a waiting list. Her son also called to report the problem. At some point, a workman from the sewerage department inspected the site and determined that it was a broken water pipe for which the sewerage department was not responsible. Approximately six weeks later, and after her fall, the water department came out and repaired the problem.

Plaintiff testified that on the day of this incident, she fell into a split, and a friend called for an ambulance. She did not go to the hospital at that time because she was wet and muddy and also dizzy. She went inside to bed, and continued to have pain during the night. She went to the hospital emergency room the following day.

|4Plaintiff testified that after she left the hospital, she saw Dr. Volek, a chiropractor and was treated over the course of two years with heat therapy, traction and simulation. Plaintiff did not feel her condition was improving and she continued to go to the emergency room for pain. In December of 2001 she saw Dr. Kessler, who prescribed an MRI and physical therapy. Plaintiff testified that she told Dr. Kessler that she was injured in a fall, and that although she previously had back pain, the pain she experienced following the fall was constant and much worse. She stated that Dr. Kessler referred her to a neurologist, but she was unable to afford these charges and instead saw a physician at Charity Hospital. She had a second MRI and a nerve conduction test at Charity, and was given a prescription for a motorized wheelchair. At the time of trial, plaintiff continued to receive treatment within the Charity system.

Plaintiff testified that there were many activities she could not perform after the fall, including gardening and housecleaning. Plaintiff admitted that she had problems with her back prior to this fall, but she was no longer having any symptoms at the time of the fall in this case. She explained that the previous back problems were due to an issue with her bladder, rather than an orthopedic injury.

Plaintiff also submitted the testimony of Randy Shuler, the director of the Jefferson Parish Water Board, who identified a work order for plaintiffs property dated September 4, 2001. The Sewerage Department determined on that date that the problem involved the Water Department, and the work order was referred to Water on September 5, 2001. No barriers were placed around the mailbox at this time. The Water Board records indicate that the problem was repaired on September 24, 2001.

|5Puring the presentation of their case, defendant also presented Mr. Shuler’s testimony. Mr. Shuler testified that due to a severe drought, the Sewerage and Water Board received a much larger volume of reports of broken water lines during the summer of 2001. They made the decision to prioritize and repair the most dangerous problems first. Mr. Shuler confirmed that the work order for plaintiffs property was completed within a 20 day period, which he believed to be reasonable under the busy conditions. He stated that based on the amount of work orders received during the time period, it would not have been reasonable for plaintiffs repair to be completed within 11 days, or from the date the order was received until the date of plaintiffs fall. He stated that the department could not have repaired the problem any sooner than it did.

Defendant also submitted the video deposition of Dr. Melvin Parnell who performed an IME on plaintiff. Defendant moved for an involuntary dismissal of defendant Consolidated Sewerage District No. 1 of the Parish of Jefferson, as there was no evidence of negligence on the part of this defendant. The trial court granted this motion and took the matter against Water Works under advisement.

On December 1, 2008, the trial court rendered judgment in favor of plaintiff and against Consolidated Water Works Dist. No. 1 in the amount of $89,000.00 in general damages and $10,557.11 in special damages. The trial court also issued reasons for judgment finding that defendant had a reasonable opportunity to remedy the problem prior to plaintiffs injury, and was negligent in failing to do so. Defendant suspensively appeals from this judgment on the basis of several assignments of error. Plaintiff, in proper | (¡person, also filed an appeal from this judgment and her trial attorney has filed an amicus brief in this matter.

By its appeal, defendant contends that the trial court erred in finding the area of the fall presented an unreasonably dangerous condition and that defendant had a reasonable opportunity to repair this condition prior to the fall. Further, defendant contends that the trial court erred in failing to assess comparative fault to plaintiff in this matter and in awarding excessive damages to plaintiff.

Plaintiffs claims fall under either a theory of negligence pursuant to La. C.C. art. 2315 or strict liability pursuant to La. C.C. art. 2317. At all pertinent times herein, La. C.C. art. 2317.1 provided:

The owner or custodian of a thing is answerable for damage occasioned by its ruin, vice, or defect, only upon a showing that he knew or, in the exercise of reasonable care, should have known of the ruin, vice, or defect which caused the damage, that the damage could have been prevented by the exercise of reasonable care, and that he failed to exercise such reasonable care. Nothing in this Article shall preclude the court from the application of the doctrine of res ipsa loquitur in an appropriate case.

In Leonard v. Parish of Jefferson, 05-32, p. 4 (La.App. 5th Cir.4/26/05), 902 So.2d 502, 504 we noted this article effectively turns strict liability into negligence claims, citing Reitzell v. Pecanland Mall Associates, Ltd., 37,524, p. 3 (La.App. 2nd Cir.8/20/03), 852 So.2d 1229, 1232.

Thus, to prevail on a claim against a public entity for negligence or strict liability, a plaintiff must establish: (1) the entity’s custody or ownership of the defective thing; (2) the defect created an unreasonable risk of harm; (3) the entity’s actual or constructive notice of the defect; and (4) causation. Butkiewicz v. Evans, 06-236, pp. 5-6 (La.App. 5 Cir. 9/26/06), 943 So.2d 509, 512. See also, Oster v. Dep’t of Transp. & Dev., State of La., 582 So.2d 1285, 1288 (La.1991); La. R.S. 9:2800; Joseph v. City of New Orleans, 02-1996, p. 3 (La.App. 4th Cir.3/5/03), 842 So.2d 420, 423.

The manifest error standard of review applies to the trial court’s finding of whether a defect creates an unreasonable risk of harm. Reed v. Wal-Mart Stores, Inc., 97-1174, p. 5 (La.3/4/98), 708 So.2d 362, 365; Joseph, 02-1996 at p. 4, 842 So.2d at 423.

In determining whether a defect creates an unreasonable risk of harm, the courts use a risk-utility balancing test in which the gravity and risk of harm is balanced against the individual and societal rights and obligations, the social utility, and the cost and feasibility of repair. Leonard, 05-32 at p. 5, 902 So.2d at 504; Joseph, 02-1996 at p. 4, 842 So.2d at 423, citing Reitzell, 37,524 at pp. 3-4, 852 So.2d at 1232. See also, Boyle v. Board of Supervisors, Louisiana State University, 96-1158, p. 5 (La.1/14/97), 685 So.2d 1080, 1083.

In the present case, plaintiff gave descriptive testimony of the area surrounding her mailbox. She stated that there was “messy water” 3-4 feet around the mailbox for a period of several months, and there was no way to access the box without encountering it. She also described it as slippery and that when she fell she felt as if she had roller skates on. She also introduced photographs of the area which confirm her description. Plaintiff further stated that she attempted to avoid the area by waiting on her porch for the mailman to arrive, but she did not see him on the day of the incident. Although plaintiff stated she was aware of the severity of the condition, she stated it was necessary to go to the mailbox on the date of her fall to mail bills.

| ^Defendant contends that while standing water may be deemed to be a defect, the record fails to prove the condition rose to the level of being unreasonably dangerous. Generally a defendant has no duty to protect against an open and obvious hazard. If the facts of a particular case show that the complained of condition should be obvious to all, the condition may not be unreasonably dangerous and the defendant may owe no duty to the plaintiff. In a slip and fall case, a pedestrian has a duty to see that which should be seen and is bound to observe whether the pathway is clear. Jeansonne v. South Cent. Bell Telephone Co., 08-568, p. 9 (La.App. 5 Cir. 1/13/09), 8 So.3d 613, 619.

In the present case, plaintiff admitted that she was aware of the obvious condition of the area and normally tried to avoid it, but found it necessary to access her mailbox on the date in question. She testified that she attempted to walk on the dry area, but that her feet slipped very quickly causing her to fall. Further, the photographs of the area depict an unreasonably dangerous condition, i.e., one which would reasonably be expected to cause injury to a prudent person using ordinary care under the circumstances. Under the circumstances presented here, we find no manifest error of the trial court’s determination that the area presented an unreasonable risk of harm that defendant had a duty to repair.

We likewise find no manifest error in the trial court’s failure to assess comparative fault to the plaintiff. Plaintiff testified that she tried to avoid walking near the mailbox due to the condition surrounding it, and that she tried to avoid stepping in the water on the day of the accident. The record indicates that plaintiff proceeded carefully and as an ordinary prudent person |9on the date of the accident, and the record does not support a finding of comparative fault on her part.

Defendant next argues that the trial court erred in finding that defendant had a reasonable opportunity to remedy this defect prior to plaintiffs fall. Defendant cites La. R.S. 9:2800(C) which requires plaintiff to prove the public entity had a reasonable opportunity to remedy the defect but failed to do so. In support of its argument, defendant relies on the work order generated by plaintiffs complaint dated September 4, 2001 and the evidence that the problem was repaired on September 24, 2001, approximately 20 days later. Defendant also relies on the testimony of Randy Shuler regarding the especially high volume of calls regarding water pipe problems during the period in question.

The trial court in this case made a factual determination that defendant had a reasonable opportunity to repair the defect prior to plaintiffs fall. The trial court relied on Louisiana case law presented by plaintiff which supported a finding that 20 days is more than a reasonable amount of time for a defect to be repaired by a public entity. The trial court also noted that defendant failed to present any case law that supported its position that there was no reasonable opportunity to remedy the defect. Apparently, the trial court failed to credit the testimony of Mr. Shuler that the Parish needed additional time due to an increased work load at the time. These factual findings are within the discretion of the trial court and will not be disturbed absent manifest error.

With regard to damages, we find no merit in defendant’s argument that the damage award was excessive or that plaintiff was awarded medical expenses for treatment that was unrelated to the accident in this case. ImAlthough the trial court found that plaintiff had a pre-exist-ing back problem, the court found that these problems were exacerbated by the fall in this case The trial court also found plaintiff received treatment for this injury for a period of approximately 18 months. This finding is supported by the medical evidence presented at trial. All of the medical experts, including defendant’s expert, opined that plaintiffs fall could have exacerbated her pre-existing back problems. In fact, Dr. Macaluso, plaintiffs general practitioner, found evidence of nerve irritation in plaintiffs back which was not present prior to the fall.

Thus, although defendant argues that plaintiffs credibility with regard to her previous injuries was called into doubt, the trial court took her previous injuries into consideration when rendering the award of damages. Further, the medical evidence supports the court’s findings that plaintiffs condition was worsened by the fall, and we find that the court’s findings regarding the length of treatment is reasonably supported by the record.

Further, defendant contends the general damage award is excessive when compared to similar awards for soft tissue injuries. However, the record in this case indicates that plaintiff suffered nerve irritation and disc involvement which were medically related to the fall in this case. Under these circumstances, we fail to find that the trial court’s award of $39,000.00 in general damages is an abuse of the trial court’s much discretion.

Finally, although the record shows that plaintiff has devolutively appealed from the court’s judgment, a review of the briefs filed in this Court fail to articulate the error on which her appeal is based. Absent a statement of an assignment of error or a brief of same, we are unable to consider plaintiffs appeal from the trial court’s ruling.

11TAccordingly, for the reasons assigned herein, the judgment of the trial court is affirmed. Defendant is to bear all costs of this appeal.

AFFIRMED.


author: CLARENCE E. McMANUS, Judge.

text:
    STATE of Louisiana v. Jermaine M. WELCH.
    No. 09-KA-138.
    Court of Appeal of Louisiana, Fifth Circuit.
    Oct. 27, 2009.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Andrea F. Long, James W. Adair, Assistant District Attorneys, Gretna, LA, for Plaintiff/Appellee.
    Bruce G. Whittaker, Attorney at Law, Louisiana Appellate Project, New Orleans, LA, for Defendant/Appellant.
    Panel composed of Judges, MARION F. EDWARDS, CLARENCE E. McMANUS and FREDERICKA HOMBERG WICKER.
   CLARENCE E. McMANUS, Judge.

| STATEMENT OF THE CASE

The Jefferson Parish Sheriffs Office charged defendant, Jermaine Welch, in a bill of information with possession of a firearm by a convicted felon in violation of LSA-R.S. 14:95.1, aggravated criminal damage in violation of LSA-R.S. 14:55, and aggravated battery in violation of LSA-R.S. 14:34.

On March 1, 2007, Detective David Spera with the Jefferson Parish Sheriffs Office was assigned to conduct a follow-up investigation of a February 25, 2007, shooting. Defendant, who had been arrested on February 27, 2007 in connection with the shooting, was being held at the Jefferson Parish Correctional Center (JPCC). Detective Spera’s investigation involved interviewing defendant. Detective Spera met with defendant at the JPCC and, according to Detective Spera, defendant agreed to accompany him to the Detective Bureau. Once at the Detective Bureau, defendant gave a taped statement implicating himself in the February 25, 2007, shooting. He explained he went to confront his estranged wife | sabout seeing her kiss another man. As he was waiting to talk to his estranged wife, a car passed and defendant grabbed a gun and “went to shooting.”

Defendant initially pled not guilty and filed several pre-trial motions, including a motion to suppress his statement. The trial court denied his motion to suppress his statement after a hearing. Defendant later withdrew his not guilty plea and entered a plea of guilty under State v. Crosby, 338 So.2d 584 (La.1976).

In accordance with the plea agreement, the trial court sentenced defendant to ten years in the Department of Corrections without the benefit of parole, probation or suspension of sentence for his felon in possession of a firearm conviction and ten years for his aggravated criminal damage to property and aggravated battery convictions. The sentences were ordered to run concurrently with each other.

Defendant obtained an out-of-time appeal and now challenges the denial of his motion to suppress.

ASSIGNMENT OF ERROR NUMBER ONE

In his first assignment of error, defendant argues the trial court erred in denying his motion to suppress his statement because the State failed to prove he knowingly and voluntarily gave the statement. He claims he did not understand his rights and that the statement was coerced. He further contends the trial court erred in finding he was advised of his rights five to six times before giving his statement. Defendant maintains he was only advised of his rights after he was transported from the jail to the detective bureau and asserts the transport alone was coercive.

The State responds that defendant, who had completed the 12th grade, had a prior conviction, to which he pled guilty, and was fully aware of and understood his rights when he gave his statement. The State also argues the trial court made a | credibility determination and believed Detective Spera’s testimony over defendant’s testimony regarding the issue of the coercive nature of the statement.

Before an inculpatory statement, made during a custodial interrogation, may be introduced into evidence, the State must prove beyond a reasonable doubt that the defendant was first advised of his Miranda rights and that the statement was made freely and voluntarily and not under the influence of fear, intimidation, menaces, threats, inducements or promises. LSA-R.S. 15:451; State v. Scott, 06-134, p. 10 (La.App. 5 Cir. 7/25/06), 939 So.2d 462, 469, writ denied, 06-2133 (La.3/30/07), 953 So.2d 61. A determination of voluntariness is made on a case-by-case basis, depending on the facts and circumstances of each situation. The admissibility of a confession or statement is a determination for the trial judge and his conclusions on the credibility and weight of the testimony relating to the voluntary nature of the confession or statement are entitled to great weight and will not be overturned unless unsupported by the evidence. Id.

Prior to pleading guilty, defendant filed a generic motion to suppress his statement on the basis it was obtained in violation of his constitutional rights. At the conclusion of the suppression hearing, defendant argued that the stress of being arrested and the actions of Detective Spera made him feel he had lost the power of choice and felt like he had to cooperate. He contended his rights were not explained to him and he gave his statement without understanding his rights. The trial court denied the motion to suppress finding defendant was well-advised of his rights and that his statement was voluntary.

At the motion to suppress hearing, Detective Spera testified that he met with defendant at the JPCC as part of his follow-up investigation to a shooting. He stated defendant agreed to accompany him to the detective bureau to give a J^statement. Once at the detective bureau, Detective Spera presented defendant with a rights of arrestee or suspect form, which indicated defendant was under investigation for attempted second degree murder.

Detective Spera testified he read the rights on the form to defendant and that defendant initialed next to each right and then signed the waiver of rights at the bottom of the form. The form shows defendant had a 12th grade education and agreed to waive his rights and give a statement. In signing the form, defendant indicated no promises or threats had been made to him and no pressure or coercion of any kind had been used against him.

Detective Spera testified that defendant gave a statement after executing the form. The transcript of the statement shows Detective Spera reviewed defendant’s execution of the rights form and confirmed defendant understood his rights as stated on the form prior to taking his statement. Based on defendant’s education background, which was a 12th grade education, Detective Spera testified he had no reason to feel defendant had any difficulty understanding him. He explained he asks a suspect if they can read and write and then takes the suspect’s word for it. In the present case, Detective Spera assumed defendant truthfully answered him that he could read and write based on his educational level.

Detective Spera further testified he did not force or coerce defendant to give a statement. He explained defendant was very cooperative and was not agitated or fidgety during the interview. Detective Spera specifically noted that defendant exhibited no signs of sleep deprivation. He stated defendant neither fell asleep during his statement nor did he require his arms to rest his head upon. He explained defendant sat upright in his chair and answered questions in a normal and clear voice.

| (iDefendant testified he was exhausted at the time of his statement. He approximated he had only received six hours of sleep from the time of his arrest on February 27th until he gave his statement on March 1st. He also stated he felt he had no choice but to accompany Detective Spera to the detective bureau and give a statement. Defendant explained Detective Spera came to JPCC and told him he needed to come to the detective bureau to give his side of the story.

Defendant stated that once he was at the detective bureau, he was told to sign and initial a form. He testified that he did not read it and explained that he could not read at all. He stated he was in a special education class in school and had difficulty reading and writing. He explained he graduated from high school with a certificate of achievement, not a diploma. Defendant further stated he did not really know what a waiver meant and felt he did not understand his rights. He claimed he did not know he had a right to a lawyer during the interview.

Defendant also claimed he felt threatened by Detective Spera’s pre-statement physical gesture of punching a closed fist on the inside of his hand. Defendant testified he felt Detective Spera was trying to infer he would use force against defendant to get what he wanted. As a result, defendant stated he cooperated so he would not be beaten by the police. On rebuttal, Detective Spera denied any threats were made towards defendant and specifically denied he made a fist in the hand gesture.

On appeal, defendant claims his statement was not knowing and voluntary on the basis that (1) he did not understand his rights because he could not read despite having a 12th grade education, and (2) he felt coerced by the transport between the jail and the detective bureau and Detective Spera’s alleged physical gesture.

|7The record shows defendant had a 12th grade education. At no time prior to giving his statement did defendant indicate to Detective Spera that he could not read or that he did not understand his rights. Detective Spera testified that before defendant executed the waiver of rights form, he read defendant the rights on the form. Detective Spera stated that there was no question in his mind that defendant understood his rights. At the beginning of the taped statement, Detective Spera asked defendant if he read over the rights form and if he understood everything that was on the form. Defendant replied affirmatively to both questions.

Additionally, at the suppression hearing, defendant specifically admitted Detective Spera reviewed his rights at the beginning of his taped statement. Furthermore, defendant had a prior conviction to which he pled guilty evidencing his familiarity with the judicial process and his knowledge of his rights. See State v. Stewart, 37,841, p. 8 (La.App. 2 Cir. 12/12/03), 862 So.2d 1100, 1105, writ denied, 04-234 (La.6/4/04), 876 So.2d 74.

Although defendant is correct in asserting there was no evidence in the record that he had been advised of his rights five or six times before coming in contact with Detective Spera as the trial court noted, the record does show that defendant was advised of his rights at least twice before giving his statement and indicated he understood his rights on both occasions.

Defendant’s claim that he felt coerced into giving the statement because he was transported from the jail to the detective bureau does not allege any specific police misconduct. Defendant testified he felt he had no choice but to go with Detective Spera to the detective bureau; however, he never claimed any threats were made against him. He did state Detective Spera left the room at the jail for five to ten minutes and he was left alone with Officer Jones. According to defendant, he told Officer Jones he did not do anything, but Officer Jones | ^repeatedly told him that he did not believe defendant and that defendant needed to tell him something about the incident. Defendant testified he felt if he did not accompany the officers to the detective bureau, they would keep coming back to the jail to get him.

On appeal, defendant does not offer any authority to support his contention that being transported from the jail to the detective bureau amounts to coercion. Detective Spera testified he told defendant that he was investigating the shooting for which defendant was under arrest. He told defendant he would be happy to listen to his version of the events if defendant “wanted to come back to the Detective Bureau and give ... a statement.” Detective Spera denied telling defendant he had to come to the bureau and stated defendant agreed to go to the bureau. Defendant never rebutted Detective Spera’s version of what happened. Defendant simply claimed he felt he could not refuse. The simple act of asking a defendant to accompany an officer to the detective bureau in the event the defendant wishes to give a statement does not rise to the level of coercion that vitiates the voluntariness of a confession. Furthermore, once at the detective bureau and before giving his statement, defendant signed a form that specifically stated no threats, pressure or coercion of any kind had been used against him.

Defendant also claimed he felt coerced into giving a statement because of Detective Spera’s threatening physical gesture. When an accused alleges a specific instance of police misconduct in reference to a confession, the State must specifically rebut the allegation. State v. Broadway, 96-2659, p. 22 (La.10/19/99), 753 So.2d 801, 817, cert. denied, 529 U.S. 1056, 120 S.Ct. 1562, 146 L.Ed.2d 466 (2000). To rebut defendant’s allegation, the State presented the testimony of Detective Spera, who specifically denied that he ever made a fist in hand gesture. The trial judge, who was faced with contradictory testimony which calls for a | ^determination of the credibility of the witnesses, obviously disbelieved the version presented by defendant and found Detective Spera’s testimony credible. Such credibility determinations lie within the sound discretion of the trial judge and his ruling will not be disturbed unless clearly contrary to the evidence. Id. at 23, 753 So.2d at 817.

In Broadway, supra, the defendant claimed his confession was coerced and testified about physical abuse and threats by various police officers that occurred during his interrogation. The State presented the testimony of all the officers involved in the transportation and interrogation of the defendant who all denied defendant was ever threatened, intimidated, coerced, or verbally or physically abused. The Louisiana Supreme Court found the trial court made a credibility determination that was supported by the record.

In this case, regarding defendant’s testimony that he was sleep deprived at the time of his statement, Detective Spera testified defendant did not show any signs of sleep deprivation and the record shows defendant never requested sleep prior to or during his statement. Furthermore, nothing in the record shows defendant was promised sleep in exchange for his confession.

In State v. Franklin, 03-287, pp. 3-8 (La.App. 5 Cir. 9/16/03), 858 So.2d 68, 70-72, writ denied, 03-3062 (La.3/12/04), 869 So.2d 817, defendant claimed he was coerced into giving statements because he was deprived of sleep. This Court found defendant’s confession was voluntary and noted that defendant never requested sleep during the entire interrogation process and there was no evidence he was sleepy at the time he gave his statements. This Court also noted defendant was never promised sleep in exchange for his confession.

Additionally, in State v. Broadway, 440 So.2d 828, 831-32 (La.App. 2 Cir.1983), defendants claimed their confessions were made under duress because they | inhad not slept or eaten since the day before giving their confessions. The Second Circuit found that the lack of sleep and food was attributed to the defendants’ own voluntary actions and not the actions of law enforcement officers and, therefore, could not be used to invalidate the confessions.

In the present case, defendant testified he was unable to sleep or eat after he was arrested and placed in jail. In fact, he stated he could not sleep since the incident. Thus, we find defendant’s lack of sleep was not attributable to the actions of Detective Spera or other law enforcement officers.

We further find the record sufficiently demonstrates defendant’s statement was knowing and voluntary. The testimony of both Detective Spera and defendant show defendant was advised of his rights. Detective Spera felt defendant understood his rights based on defendant’s education level and defendant specifically stated he understood his rights prior to giving his statement. At no time prior to or during his statement did defendant indicate he could not read and did not understand his rights, as presented on and read to him from the rights form.

Additionally, we find the mere fact that defendant “felt” he could not refuse Detective Spera’s request that he accompany him back to the detective bureau to give a statement does not render defendant’s statement involuntary. Defendant never claimed he was threatened if he did not go to the detective bureau and there was no evidence of any type of coercion. Furthermore, the trial court made a credibility determination, which is supported by the record, that Detective Spera did not use a threatening physical gesture in obtaining defendant’s statement. Accordingly, we agree with the trial court and find defendant’s statement was voluntary and find the trial court correctly denied defendant’s motion to suppress the statement.

11,ASSIGNMENT OF ERROR NUMBER TWO

As his assignment of error number two, defendant requests an error patent review, but does not brief the matter. However, this Court routinely reviews the record for errors patent in accordance with LSA-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), regardless of whether defendant makes such a request. Therefore, we will address the following matters.

First, it is unclear whether the trial court imposed separate sentences for each count. Specifically, the commitment indicates, “[t]he Defendant is sentenced to ten years on counts one, two, three concurrently,” and the sentencing transcript reflects the following:

On the Convicted Felon with a Weapon, the Court is going to sentence you to ten (10) years in the custody of the Department of Corrections without benefit of probation, parole or suspension of sentence.
On Aggravated Criminal Damage to Property and Aggravated Battery, the Court is going to sentence you to ten (10) years in the custody of the Department of Corrections.
All counts run concurrent with each other giving you credit for time served.

Ordinarily, the trial court must impose a separate sentence for each count on which a defendant is convicted. State v. Collins, 04-751, p. 6 (La.App. 5 Cir. 11/30/04), 890 So.2d 616, 620. The failure of the trial court to impose a sentence for each count is considered an error patent, but an exception exists. State v. Hebert, 02-1252, p. 9 (La.App. 5 Cir. 4/8/03), 846 So.2d 60, 66. When the sentences for a conviction on each count would more appropriately be concurrent rather than consecutive, and the term of the imprisonment is reasonable under the circumstances, the single sentence will not affect the substantial rights of the defendant and remand for clarification or resentencing is not necessary. Id.

|12LSA-C.Cr.P. art. 883 provides that sentences for two or more convictions based on the same act or transaction are to be served concurrently, unless the trial court expressly directs they be served consecutively. In the present case, all three of defendant’s convictions were based on a single incident. Additionally, the trial court ordered all of defendant’s convictions to be served concurrently in accordance with the plea agreement. Thus, we find no need to remand the matter for clarification or resentencing. See State v. Hebert, supra, and State v. Collins, supra.

Second, we note defendant received an illegally lenient sentence on count one because the trial court failed to impose a mandatory fine under LSA-R.S. 14:95.1, which requires a fine between $1,000 and $5,000. This Court has the authority to correct an illegally lenient sentence. LSA-C.Cr.P. art. 882. However, this authority is permissive rather than mandatory. When a defendant is sentenced pursuant to a guilty plea, this Court has withheld from correcting an illegally lenient sentence, recognizing that the appellate court should refrain from employing errors patent review to set aside guilty pleas about which the defendant makes no complaint, and which resulted in disposition of the case favorable to defendant. State v. Grant, 04-341, pp. 4-5 (La.App. 5 Cir. 10/26/04), 887 So.2d 596, 598. Therefore, since defendant’s sentence in this case resulted from a guilty plea, we refrain from exercising our authority to correct defendant’s illegally lenient sentence. Accordingly, defendant’s sentence is affirmed.

AFFIRMED.

      . Although neither the minute entry nor the guilty plea transcript shows defendant pled guilty under Crosby, the waiver of constitutional rights and plea of guilty form specifically shows defendant understood he retained the right to appeal the ruling on his motion to suppress under Crosby.

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).


author: MARION F. EDWARDS, Judge.

text:
    The PARISH OF JEFFERSON v. Melanie KENNEDY, wife of/and Christopher Kennedy.
    No. 09-CA-145.
    Court of Appeal of Louisiana, Fifth Circuit.
    Oct. 27, 2009.

      Mitchell W. Gibbs, Attorney at Law, Jefferson, Louisiana, for Plaintiff/Appellee.
    Philip H. Kennedy, Attorney at Law, New Orleans, Louisiana, for Defendants/Appellants.
    Panel composed of Judges MARION F. EDWARDS, CLARENCE E. McMANUS, and JUDE G. GRAVOIS.
   MARION F. EDWARDS, Judge.

12Pefendants/appeIlants, Melanie Kennedy, wife ofiand Christopher Kennedy (“the Kennedys”), appeal a judgment by the Twenty-Fourth Judicial District Court dismissing their appeal. For the reasons to follow, we reverse.

The Kennedys were cited for violation of the Code of Ordinances of the Parish of Jefferson (“the Parish”) for storing a boat on a trailer in the driveway of their home. Following a hearing, the administrative hearing officer found them to be in violation of the ordinance and fined them $200 for each day the violation remained in existence after a compliance period of five days. The order also operated as a lien and privilege against the property and determined that failure to pay the lien would result in the sale of the property under the laws of adjudicated tax sales. The order concluded by stating:

Defendants have the right to appeal this decision to the 24th Judicial District Court for the Parish of Jefferson within thirty (30) days of the signing of this Order and after posting a bond with the Bureau of Administrative Adjudication pursuant to Section 2.5-10 of the Jefferson Parish Code of Ordinances.

| sThe ruling was issued on July 22, 2008, and the Kennedys filed a Petition for Judicial Review on August 20, 2008. The Parish filed a Motion and Order to Dismiss with Prejudice the application for judicial review. The Parish contended that the Kennedys had failed to post the bond as required by the Order. The trial court granted the order, dismissing the appeal. The Kennedys appeal that judgment, contending that both Section 2.5-10 of the Jefferson Parish Code of Ordinances and La. R.S. 49:964 are unambiguous and do not require an appeal bond in order to perfect an appeal. Rather, they urge that any bond involved merely stays the enforcement of an agency determination pending judicial review.

Section 2.5-10 reads as follows:

Any person determined by a final order of the hearing officer to be in violation of a public health, housing, fire code, environmental, or historic district ordinance ... or any other ordinance that may be determined by the Jefferson Parish Council, may appeal this determination to the Twenty-Fourth Judicial District Court for the Parish of Jefferson. Such appeal shall be instituted by filing, within thirty (30) days of the hearing officer’s order, a petition with the clerk of the Twenty-Fourth Judicial District Court along with payment of such reasonable costs as may be required by the clerk of court. On the same day as the petition for appeal is filed, the violator shall serve a copy on the director of the appropriate enforcement agency or department and a copy on the parish attorney. After the petition for appeal has been filed, the clerk of court shall schedule a hearing and notify all parties of the date, time and place of such hearing. Service of notice of appeal under this paragraph shall not stay the enforcement and collection of the order or judgment unless the person, prior to filing notice of appeal in the Twenty-Fourth Judicial District Court, furnishes to the parish, for deposit in escrow by the director of finance, security sufficient to assure satisfaction of the finding of the hearing officer relative to the fine and costs of the hearing and costs, if any, of correcting the violation. Security may be waived in the case of those entitled to proceed in forma pauperis or if in the opinion of the hearing officer the requirement of security would impose unreasonable hardship on the violator or some other person.

|4Section 2.5-7(i) requires that the final order notify the violator of his right of appeal. Section (j) states the hearing officer may order the payment of fines and hearing costs, which costs are to be paid into the general fund unless otherwise provided by laws. Section (k) states that the hearing officer may suspend all or a portion of his final order and may make any suspension contingent on the fulfillment of some reasonable condition.

The Administrative Procedure Act, specifically La. R.S. 49:964, provides that proceedings for review may be instituted by filing a petition in the district court of the parish in which the agency is located within thirty days after mailing of notice of the final decision by the agency. The filing of the petition does not itself stay enforcement of the agency decision; however, the agency may grant, or the reviewing court may order, a stay ex parte upon appropriate terms. La. R.S. 13:2575 provides municipalities with authority to enact ordinances relative to public health, housing, and environmental violations. As with the statutes above, an appeal is instituted by filing the petition within thirty days of the hearing officer’s order, along with payment of such reasonable costs as may be required by the clerk of court, and security is necessary only to stay the administrative order.

The rules of statutory construction are designed to ascertain and enforce the intent of the Legislature. The appropriate starting point in statutory interpretation is a consideration of the language of the statute itself. When a statute is clear and unambiguous and its application does not lead to absurd consequences, the statute is applied as written. Those who enact statutory provisions are presumed to act deliberately and with full knowledge of existing laws on the same subject, with awareness of court cases and well-established principles of statutory construction, | ,sand with knowledge of the effect of their acts and a purpose in view. Where it is possible, courts have a duty in the interpretation of a statute to adopt a construction which harmonizes and reconciles it with other provisions dealing with the same subject matter. On occasion, our courts have varied from the literal language of a statute and found “room for construction” or interpretation of the statute very infrequently and only under limited circumstances. One of the limited circumstances in which the court has varied from the literal language of a statute is the case in which there is an obvious omission of language, as opposed to the case in which a word or phrase, taken literally, is clear and unambiguous. The courts have also varied from the literal language of statutes when such an interpretation clearly was unintended and would defeat the purpose of the statute.

The applicable laws clearly hold that an appeal is instituted when the petition is filed. Although the hearing officer is permitted to assess fines and hearing costs, only the clerk of court is authorized to require costs for appeal. The laws require security be paid to the Parish in order to stay enforcement and collection. In addition, under La. R.S. 49:964, the court, not the agency, may require that a stay be granted in accordance with the local court rules pertaining to injunctive relief and the issuance of temporary restraining orders.

While the Parish argues that not requiring a bond defies common sense because the order can otherwise be executed, we find the relief granted to a defendant in these cases is a devolutive appeal unless the appropriate costs are paid prior to filing the petition. An appeal is the exercise of the right of a party to have a judgment of a trial court revised, modified, set aside, or reversed by an appellate | fiCOurt. La. C.C.P. art. 2082. This particular action appears to be no different from any other devolutive appeal involving a money judgment that has or may already have been dispersed to the winning party before the appellate decision has been rendered. As devolutive appeals are provided for in our Code of Civil Procedure, applying the law as written does not lead to absurd consequences, nor does such interpretation fall under the limited exceptions above.

For these reasons, the judgment granting the Motion To Dismiss is reversed, and the matter is remanded to the trial court with instructions to reinstate the Kennedy appeal.

REVERSED AND REMANDED WITH INSTRUCTIONS.

      . M.J. Farms, Ltd. v. Exxon Mobil Corp., 07-2371 (La.7/1/08), 998 So.2d 16.

      . Hunter v. Morton's Seafood Restaurant & Catering, 08-1667 (La.3/17/09), 6 So.3d 152.

      . Id.; La. R.S. 1:4; La. C.C. art. 9.

      . Hunter v. Morton’s Seafood Restaurant & Catering, supra.

      . M.J. Farms, Ltd. v. Exxon Mobil Corp., supra.

      . Louisiana Mun. Ass’n v. State, 00-0374 (La. 10/6/00), 773 So.2d 663.

      . Id. (referring to State v. Bennett, 610 So.2d 120 (La. 1992)).

      . Id. (referring to Dore v. Tugwell, 228 La. 807, 84 So.2d 199 (1955) and Cousins v. City of New Orleans, 580 So.2d 536 (La.App. 4th Cir.1991)).