author: MARC E. JOHNSON, Judge.

text:
    Ronald GRACI and Sunkissed Tanning Studios, L.L.C. v. GASPER JOHN PALAZZO, JR., L.L.C.
    No. 09-CA-347.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 29, 2009.

      Joseph M. Bruno, Jr., Attorney at Law, New Orleans, LA, for Plaintiff/Appellant.
    Matthew K. Brown, Attorney at Law, New Orleans, LA, for Defendant/Appellee.
    Panel composed of Judges MARION F. EDWARDS, SUSAN M. CHEHARDY and MARC E. JOHNSON.
   MARC E. JOHNSON, Judge.

| .¿Plaintiffs/Appellants, Ron Graci and Sunkissed Tanning Studios, L L.C., appeal the summary judgment and/or Judgment on the Pleadings granted in favor of Defendant/Appellee, Gasper Palazzo, L.L.C. through a Motion for Reconsideration in the 24th Judicial District Court. For the following reasons, we reverse and remand to the trial court for further proceedings.

FACTS

According to the pleadings, this case arises from a breach of a commercial lease between lessees, Plaintiffs, and lessor, Defendant, for the rental of real property in the Colannadas Plaza for a term of three years. The lease commenced on March 1, 2004 and was intended to terminate on March 1, 2007. Plaintiffs constructed a tanning salon build-out on the property, which was stipulated to by both parties in the lease.

On August 29, 2005, Hurricane Katrina struck Louisiana and caused extensive damage to the tanning salon. According to the lease, Plaintiffs were allowed to exercise the option to have the leased premises “reconstructed, at the expense of the Lessor, in substantially the same manner as the same existed prior |3to said casualty.” In addition, the lease provided that the rent was abated from the date of the casualty until the completion of the reconstruction of the leased premises. Although repairs were made by Defendant, Plaintiffs never reopened the tanning salon for business after Hurricane Katrina and did not pay any rent during the remaining months of the lease.

Procedural History

On October 6, 2006, Defendant filed an eviction proceeding against Plaintiffs in Slidell City Court. In return, Plaintiffs filed a Temporary Restraining Order in the 22nd Judicial District Court to enjoin the eviction. The Temporary Restraining Order was granted, and both parties agreed to continue the preliminary injunction hearing indefinitely pending negotiations. However, on January 29, 2007, defendant filed a Rule to Evict in the 22nd Judicial District Court. That district court granted the eviction on March 14, 2007. Plaintiffs did not appeal this judgment.

On March 23, 2007, Plaintiffs filed suit against Defendant in the 24th Judicial District Court alleging breach of contract and wrongful eviction. Subsequently, defendant filed a Supplemental Petition in Re-convention for Unpaid Rent, Penalties and Attorney’s Fees in the 22nd Judicial District Court and filed an Exception of Lis Pendens in the 24th Judicial District Court on April 11, 2007. On May 23, 2007, the trial court in the 24th Judicial District Court denied the exception.

Defendant filed a reconventional demand in the matter in the 24th Judicial District Court on June 26, 2007 for rent, penalties and attorney’s fees. Plaintiffs answered the reconventional demand on July 9, 2007. On July 23, 2007, Defendant filed a Motion for Partial Summary Judgment arguing that Plaintiffs’ claims were res judicata because they were disposed of in the 22nd Judicial District |4Court case. The trial court granted Defendant’s motion and dismissed all of Plaintiffs’ claims with prejudice.

On April 29, 2008, Defendant filed a Motion for Summary Judgment and/or Judgment on the Pleadings seeking unpaid base rent, late charges, and attorney’s fees. On August 6, 2008, the trial court denied the motion and ruled that there were questions of fact remaining. Defendant, then, filed a Motion for Reconsideration for the Motion for Summary Judgment/Judgment on the Pleadings on August 26, 2008. At that hearing held on November 18, 2008, the trial court granted Defendant’s motion. On November 21, 2008, Plaintiffs filed a motion to supplement and amend their answer to the re-conventional demand.

The judgment from the November 18, 2008 hearing was signed on December 3, 2008. The judgment awarded unpaid rent, late charges, attorney’s fees, and court costs with judicial interest until the award was paid by Plaintiffs. The trial court also denied Plaintiffs’ motion to supplement and amend their answer to the reconven-tional demand on December 3, 2008 because it was then moot. From these rulings on December 3, 2008, plaintiffs’ filed the suspensive appeal now before this Court.

ASSIGNMENTS OF ERROR

Plaintiffs allege that the trial court erred in granting Defendant’s Motion for Reconsideration rendering Plaintiffs’ liable for past due rent and attorney’s fees. Plaintiffs also present the following issues of law for review:

1. Whether genuine issues of material fact exist regarding the condition of the reconstruction, such that rent will abate and regarding Defendant’s duty to mitigate his damages;
2. Whether Plaintiffs should have been permitted to amend the Answer to allege failure to mitigate damages as an affirmative defense;
|b3. Whether the award for damages was fair and reasonable;
4. Whether defendant was unjustly enriched; and,
5. Whether Plaintiffs’ claim for damages, including loss of business income, repayment of rent, attorney’s fees and penalties, is res judicata.

LAW AND ANALYSIS

Issue Numbers One and Five

It is well settled that appellate courts review summary judgments de novo. State ex rel. Dept of Transp. and Development v. Central Gulf Towing, L.L.C., 07-166, (La.App. 5 Cir. 10/30/07), 971 So.2d 1163, 1166, writ denied 07-2304, 973 So.2d 761 (La.1/25/08). Appellate courts ask the same questions the trial court does in determining whether summary judgment is appropriate: whether there is any genuine issue of material fact, and whether the mover is entitled to judgment as a matter of law. Hood v. Cotter, 08-0215 (La. 12/2/08), 5 So.3d 819, 824; Smith v. Our Lady of the Lake Hosp., 93-2512 (La.7/5/94), 639 So.2d 730, 750. Summary judgment is appropriate when it has been shown by the mover that “there is no genuine issue as to material fact, and that the mover is entitled to judgment as a matter of law.” La. C.C.P. art. 966.

A fact is material if it potentially insures or precludes recovery, affects a litigant’s ultimate success, or determines the outcome of the legal dispute. Hines v. Garrett, 04-0806 (La.6/25/04), 876 So.2d 764, 765; Smith v. Our Lady of the Lake Hosp., Inc., 93-2512 (La.7/5/94), 639 So.2d 730, 751. A genuine issue is one as to which reasonable persons could disagree; if reasonable persons could reach only one conclusion, there is no need for trial on that issue and summary judgment is appropriate. Hines at 765, 766.

| fiSummary proceedings are those which are conducted with rapidity, within the delays allowed by the court, and without citation and the observance of all the formalities required in ordinary proceedings. La. C.C.P. art. 2591. La. C.C.P. art. 2592 provides a list of the matters that can only be disposed of by a summary proceeding. An issue raised properly by a rule to show cause, e.g., a Rule to Show Cause Why Possession Should Not Be Delivered in an eviction proceeding, is disposed of summarily. La. C.C.P. art. 4731. The rule to show cause in an eviction proceeding is to determine whether or not possession of the property should be delivered to the lessor, not to determine reconventional demand claims. The adjudication of these claims and any other relief are determined via an ordinary proceeding. Lifemark Hospitals of Louisiana, Inc. v. Gulf South Medical and Surgical Institute, Inc., 03-1122 (La.App. 5 Cir. 1/27/04), 865 So.2d 903, 905; Friedman v. Hofchar, Inc., 424 So.2d 496 (La.App. 5 Cir.1982).

In the case at bar, the trial court granted the Motion for Partial Summary Judgment based upon Defendant’s argument of res judicata. Defendant asserted that Plaintiffs presented their claims as defenses during the 22nd Judicial District Court eviction proceeding, and those defenses were denied. Defendant also asserted that Plaintiffs’ recourse from that judgment was to file an appeal. We do not agree.

Plaintiffs did not have the opportunity to argue their claims during the eviction proceeding in the 22nd Judicial District Court. Plaintiffs could not present their claims for damages and mitigation during that summary proceeding because these claims must be adjudicated during an ordinary proceeding. The trial court in the 22nd Judicial District Court did make the determination that those claims were not valid as to why Plaintiffs should not have delivered the property to Defendant. However, that trial court did not rule as to whether or not Plaintiffs were entitled to 17damages or whether Defendant could have mitigated his damages. As a result, the issues raised by Plaintiffs in the 24th Judicial District Court proceeding were not barred by res judicata. These are issues that still need to be adjudicated by a court of competent jurisdiction.

Therefore, we find that there are still issues of material genuine fact remaining for the 24th Judicial District Court to determine. The judgment is vacated, and the case is remanded for adjudication of these issues.

Issue Number Two

La. C.C.P. art. 1151 states that an answer may be amended only by leave of court or by written consent of the adverse party after the ten days have lapsed after the petition has been served. The decision as to whether to grant leave to amend or supplement a pleading is within sound discretion of the trial court, and its ruling will not be disturbed on appeal, except where an abuse of discretion has occurred and indicates a possibility of resulting injustice. Stockstill v. C.F. Industries, Inc., 94-2072 (La.App. 1 Cir. 12/15/95), 665 So.2d 802, 810, writ denied, 1996-0149(La.3/15/96), 669 So.2d 428.

Here, Defendant filed his Affirmative Defenses, Answer and Reconventional Demand on June 26, 2007. Plaintiffs did not file their motion to supplement and amend the answer to the reconventional demand until November 24, 2008. The judgment denying the motion to supplement and amend the answer was signed on December 3, 2008. The trial court denied the motion to supplement and amend the answer because it was a moot issue after the summary judgment/judgment on the pleadings in favor of defendant was signed.

Considering this Court’s reversal of the granting of the summary judgment/judgment on the pleadings, the motion to supplement and amend the answer to the reconventional demand is no longer moot. Therefore, we reverse the | atrial court’s denial and remand this issue to the trial court to reconsider whether or not it will allow Plaintiffs to supplement and amend their answer.

Issue Numbers Three and Four

The 24th Judicial District Court awarded Defendant unpaid rent, late charges, attorney’s fees, and court costs with judicial interest when the Motion for Summary Judgment/Judgment on the Pleadings was granted. Although not specifically stated, Defendant was also tacitly awarded the build-out on the property. Considering the fact that this Court is reversing the partial summary judgment in favor of Defendant and the issues in both summary judgments are interrelated, we also reverse and vacate the granting of the summary judgment/judgment on the pleadings.

CONCLUSION

For the foregoing reasons, we reverse the trial court’s decision to grant the Motion for Partial Summary Judgment and the Motion for Summary Judgment/Judgment on the Pleadings in favor of Defendant. Additionally, we reverse the denial of the motion to supplement and amend the answer to the reconventional demand. We remand the case to the trial court for further proceedings. Defendant is to bear the costs of this appeal.

REVERSED AND REMANDED TO TRIAL COURT FOR FURTHER PROCEEDINGS.

      . Issue numbers one and five are interrelated and will be addressed together.

      . Issue numbers three and four are interrelated and will be addressed together.

      . Defendant was tacitly awarded the build-out because the trial court accounted for the build-out in the first denial of the summary judgment/judgment on the pleadings. However, the build-out was omitted in the subsequent judgment.


source: Caselaw Access Project

license: Public Domain

text:
    STATE of Louisiana v. Mark KELLER.
    No. 09-KA-403.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 29, 2009.

      Thomas F. Daley, District Attorney, Rodney A Brignac, Assistant District Attorney, Edgard, LA, for Plaintiff/Appellee.
    Bruce G. Whittaker, Attorney at Law, Louisiana Appellate Project, New Orleans, LA, for Defendant/Appellant.
    Panel composed of Judges SUSAN M. CHEHARDY, CLARENCE E. McMANUS and MARC E. JOHNSON.
   MARC E. JOHNSON, Judge.

| gThe Defendant, Mark Keller, appeals his conviction of second degree murder, a violation of La. R.S. 14:3o.!. We affirm.

On June 2, 2005, the Defendant was indicted for the first degree murder of Natasha Butler, a violation of La. R.S. 14:30. The Defendant was arraigned and pled not guilty. He subsequently filed two motions to suppress his statement made to the police, seeking to prevent the introduction of any of his confessions or taped statements. Both motions were denied.

|sAfter a three-day jury trial, the Defendant was found guilty as charged. Thereafter, he was sentenced to life imprisonment at hard labor without benefit of parole, probation or suspension of sentence.

The body of the victim was discovered when her friend, Kerry Coleman, went to the victim’s house after several unsuccessful attempts to reach her. Coleman arrived there around 9:00 a.m. on September 20, 2004. While checking the outside, he noticed that the back door was blackened. Because all the doors were locked, he kicked in the door to gain entry. Coleman searched for the victim throughout the house, eventually finding her lying dead in the bathroom. Coleman then left the house, asked a neighbor to call 911 and waited for the police. Coleman testified that he did not know the Defendant.

Terrell St. Martin, formerly a Detective Sergeant with the Criminal Investigation Division of the St. John the Baptist Sheriffs Office, testified that the office received a call that day about a structural fire at a house where the body of a white female was found. He stated that the victim’s mouth, arms and legs were secured with duct tape. The victim was lying on her side in the bathtub of the master bathroom.

Sergeant Jim Brouwer, with the Crime Scene Division for St. John the Parish Sheriffs Office, testified that there was a lot of black ash soot in the interior of the residence, and that the items inside the residence were in disarray.

Glenn Fontenot with the Louisiana State Fire Marshall’s Office assisted in the fire investigation. He said that there were two separate origins of the fire, but that there was no connection between them. He stated that the lack of oxygen from one fire caused a slow smoldering fire that produced soot that spread throughout |4the house, including the rear bathroom where Butler was found. Fontenot testified that neither fire started accidentally.

Dr. Karen Ross with the Jefferson Parish Coroner’s Office performed the autopsy. She found early changes with decomposition indicating some time had lapsed since the death. The doctor stated that the victim’s airway contained a frothy fluid consistent with any type of asphyxia, and could indicate drowning, suffocation or strangulation. Although there was no water in the bathtub at the time the victim’s body discovered, it had been some time between the victim’s death and when the body was found. Dr. Ross stated that the water could have evaporated or drained out. She classified the cause of death as homicidal violence with asphyxia.

Dr. Ross also noted that the victim’s face and body were covered with soot that was consistent with the fire. Her airway and lungs, however, were clear of soot which indicates that she was not breathing when the fire started.

Major Robert Hay, Chief of Detectives for the Sheriffs Office, obtained the names of the Defendant and the two co-defendants during the investigation of the homicide. After their investigation implicated the Defendant, he was arrested by Detective Will Stelly.

Detective St. Martin interviewed the Defendant following the arrest. He testified that he advised the Defendant of his constitutional rights before the interview, and that the Defendant waived his right to an attorney on two occasions. Detective St. Martin stated that the Defendant initially denied any involvement with the murder, but later confessed to being at the scene. Detective St. Martin did not recall if the Defendant admitted that he harmed anyone, or if he had the | ¿intention of harming anyone, but the Defendant did accuse Bryan Stewart of harming the victim and tying her up.

Detective St. Martin testified that he eventually obtained an audio-taped statement from the Defendant that was related to the homicide and burglary. He also talked to co-defendant, Lawrence Anthony Babin, who was being held in the Investigation Division while Detective St. Martin was interviewing the Defendant.

Babin testified that he was interrogated by Detective Stelly, Fire Marshall Carter, Detective St. Martin, and Major Hay on March 11, 2005. Questioning began around 6:00 a.m. when Babin was arrested, and ended at approximately 1:30 p.m. or 1:40 p.m. when Babin gave his statement. Babin stated that he gave a free, voluntary, and truthful audio-taped statement to Detective Stelly concerning the events leading to the victim’s death.

Babin testified that, on September 20, 2004, he and the Defendant, who is his second cousin, went to the victim’s home with Stewart, and that he and the Defendant only intended to burglarize the house. After knocking on the door and receiving no answer, Stewart went around to the back and entered the house from the back door. Stewart then let Babin and the Defendant in through the front door.

While the men were looking around, the victim entered the room. Babin stated that Stewart immediately struck the victim, and then “it was like fighting and all, he had got something to put in her throat and then tied up her ankles and put [expletive] around her neck.” The victim’s body was moved to the bathtub, but Babin stated that no one turned on the water in the tub while he was there. Babin and the Defendant then left the scene, leaving Stewart alone in the house.

| fiBabin claimed that the victim was still alive when he and the Defendant left the scene. He insisted that neither he nor the Defendant killed the victim, but further stated that there was no doubt in his mind that he, the Defendant, and Stewart committed the crime. When asked what crime he was referring to, Babin responded, “My testimony is that we all broke into the house and the result of it was the murder of Natasha Butler.” Babin confirmed his earlier statement made to the police that he never implicated himself or the Defendant in “laying hands on” the victim in order to hurt her, and that neither he nor the Defendant turned on the water in the tub, struck the victim, tied her up, or stuck a sock in her mouth. He further asserted that the Defendant did not tape the victim’s ankles, and did not contribute to the harm suffered by the victim. Babin admitted that he pled guilty to conspiracy to commit aggravated burglary of the victim’s home, and was currently imprisoned on the fifteen-year sentence imposed for that crime.

ASSIGNMENTS OF ERROR

In the appeal, the Defendant first asserts that the trial judge erred in denying the motion to suppress the confession. Second, he contends that the trial judge erred in denying the motion for mistrial premised on the improper opinion testimony of Detective Stelly. Third, he assigns all patent errors.

1) Motion to Suppress the Confession

The Defendant claims that his police statement should have been suppressed because the State failed to prove that his police statement was not coerced and that the police did not ignore his request for counsel.

The State claims that the Defendant was advised of his rights after his arrest using the Advice of Rights Form that he initialed and signed, and again before giving his recorded statement. The State notes that the Defendant admits he agreed |7to talk to the officers. The State further asserts that the trial court was in the best position to judge the credibility of the Defendant’s self-serving testimony.

In reviewing the trial court’s ruling on a motion to suppress, the appellate court may consider the evidence presented at trial in addition to the evidence presented at the hearing on the motion to suppress. State v. Imbraguglio, 08-64, p. 10 (La.App. 5 Cir. 5/27/08), 987 So.2d 257, 263; State v. Mollette, 08-138, p. 10 (La. App. 5 Cir. 11/25/08), 2 So.3d 461, 467.

The Defendant testified that he was arrested by six or seven officers at his home, taken to the Detective Bureau, and put in the interrogation room with Detective St. Martin, Fire Marshall Carter, Detective Hymel, and Major Hays. Major Hays, Detective St. Martin and Fire Marshall Carter came and went several times from the room. The Defendant denied that he willingly signed the Advice of Rights form. He contended that he told the detective that he did not want to answer questions and did not want to talk to the police as he did not have anything to say. He also claims that he told them he wanted a lawyer, but the officers told him he could not get a lawyer as he was just there for questioning. The Defendant asserts that, despite his unwillingness to talk and his requests for a lawyer, Detectives Hymel and Major Hay kept questioning him. The Defendant stated he refused to answer questions for a long time, but the officers persisted.

The Defendant testified that Detective Hymel kept grabbing him by the back of his neck and trying to get him to talk, even though he told him that he did not want to talk or answer any questions. He said that another officer was in the interrogation room at the time. The Defendant further claims that Major Hay took out his gun, pointed the gun sideways, and then put it down on the table. The Defendant asserts that Major Hay said, “I know you know something about it,” and then Major Hay told him that he was going to jail for the rest of his life and that he |swouId never see his family again if he did not talk. The Defendant insisted he was afraid because the gun was on the table pointing at him.

In the Defendant’s account of the events, Detective St. Martin kept asking him the same questions, had him listen to Stewart’s recorded statement, and told him that he had to make a statement similar to Stewart’s. The Defendant claims that Detective St. Martin provided information that the Defendant was to use in his statement to make it similar to Stewart’s, and that he did not know those facts until he listened to Stewart’s statement. The Defendant also said that, during the recording of his statement, the officer stopped recording when the Defendant told the officer he did not want to talk.

At one point in the testimony, the Defendant admitted that he waived his rights accorded a defendant under Miranda v. Arizona, 884 U.S. 486, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and that he signed the “Advice of Rights” form. He later claimed he did not recall waiving his rights, or indicating that no threats were made against him. The Defendant admitted that he said on the tape that no physical force or threats were made against him, but again claimed he made that declaration because he was threatened with harm if he said anything about the gun that was placed in front of him on the table. He also noted that he was never allowed to talk to an attorney between the time he was arrested and when he was brought to jail.

At the preliminary examination and suppression hearing, Major Hay testified that he was present in the Sheriffs Office when the Defendant and his co-defendants were arrested. Major Hay denied talking to any of the defendants when they were at the Detective Bureau, and stated he was never in the interrogation room with the Defendant. When asked if the Defendant would be incorrect in testifying that Major Hay came into the interrogation room and laid his gun on the |9table, Major Hay responded, “[the defendant] would be an absolute liar.” Major Hay testified that many years ago he implemented a procedure for officers to store their weapons prior to entering an interview room, both for safety and to prevent such accusations against investigators. The process requires any officer, regardless of the law enforcement agency he is affiliated with, to be unarmed when entering an interrogation room.

Detective Feldon Carney testified that he advised the Defendant of his rights at approximately 6:50 a.m. on the morning of March 11, 2005. He testified that the Defendant never told him that he did not want to speak to anyone until he had a lawyer.

Detective St. Martin testified that he interviewed the Defendant after he was read his rights by Detective Carney and signed a waiver of rights form. Detective St. Martin stated that he believed that the Defendant understood his rights and was willing to answer questions without an attorney present. Detective St. Martin also read the Defendant his rights from the form as part of his audio-taped statement, and testified that the Defendant indicated that he understood his rights, was waiving them, and was willing to answer questions without the presence of an attorney. He further stated the Defendant never told him that he did not want to talk to him without his lawyer present, or that he wanted an attorney.

Detective St. Martin said that he did not tell the Defendant that his statement had to coincide with Stewart’s statement, and did not recall if the Defendant actually listened to Stewart’s statement. Detective St. Martin also did not recall if he stopped the tape during the recording of the Defendant’s confession.

At the preliminary examination and suppression hearing, Babin testified that he gave his statement under duress because he was afraid that Major Hay would kill him, and claimed the Major struck him. However, he recanted that testimony hnduring the Defendant’s trial. At trial, Babin explained that, after talking with the Defendant, he made false statements during the suppression hearing in order to get both of their statements suppressed. Ba-bin agreed that as part of his plea to conspiracy to commit aggravated burglary of Butler’s home he was required to offer truthful testimonial evidence regarding the incident.

a) Right to counsel

The Fifth Amendment gives a criminal suspect subject to a custodial interrogation the right to consult an attorney during questioning. Miranda; Imbraguglio, 08-64 at 10, 987 So.2d at 268; Law enforcement officers are required to explain the right to an attorney to a criminal suspect before beginning the custodial interrogation initiated by law enforcement officers after the suspect has been taken into custody or otherwise deprived of their freedom of action in any significant way. Imbraguglio, 08-64 at 10, 987 So.2d at 268. The safeguards regarding the criminal suspect’s Miranda right to an attorney are triggered by both the custodial setting and an official interrogation. Id.

Once the criminal suspect knowingly and voluntarily waives his Miranda rights, law enforcement may continue to question a suspect unless or until he clearly requests an attorney. Imbraguglio, 08-64 at 11, 987 So.2d at 263. A criminal suspect’s invocation of his right to an attorney during a custodial interrogation “requires, at minimum, some statement that can reasonably be construed to be an expression of a desire for the assistance of an attorney.” Imbraguglio, 08-64 at 11, 987 So.2d at 263-64. (Citation omitted). Once a criminal suspect makes a request to have an attorney present, the suspect is not subject to any further interrogation by law enforcement officers until an attorney has been made available to the suspect, unless the suspect initiates further | j, communication, exchanges or conversations with law enforcement. Imbraguglio, 08-64 at 11, 987 So.2d at 264.

In Imbraguglio, the defendant claimed that his statements should be suppressed because he was denied his right to counsel. At the suppression hearing, the defendant testified that the officer told him that he was not under arrest and refused to let him call a lawyer. The defendant claimed that when he again asked to a call a lawyer, he was told that he did not need one. According to the defendant, the officers also continued to ask him questions after he told them that he was not going to say anything.

The police officer who conducted all of the defendant’s interviews testified that the defendant never asked for an attorney, and that he verbally acknowledged his rights and appeared to understand them. The defendant also placed his initials by each right on the form and signed it. The defendant’s signature indicated that he had read his rights, waived them, voluntarily answered questions, and gave a statement.

The trial judge found the officers’ testimony more credible than the defendant, and denied the motion to suppress. Based on the testimony and evidence, we found that the trial judge did not abuse his discretion in his credibility determination and factual findings. Imbraguglio, 08-64 at 12, 987 So.2d at 264.

In reviewing a trial court’s ruling as to the admissibility of a confession, the court’s conclusions on the credibility of witnesses are entitled to the respect due those made by one who saw the witnesses and heard them testify. State v. Barton, 02-163, p. 14 (La.App. 5 Cir. 9/30/03), 857 So.2d 1189, 1199-1200, writ denied, 03-3012 (La.2/20/04), 866 So.2d 817. A trial court’s ruling will not be overturned on appeal unless it is unsupported by the evidence. Barton, 02-163 at 14, 857 So.2d at 1200.

112In this case, the police officers testified that the Defendant was advised of his Miranda rights, and that the Defendant did not at any time ask for an attorney, or indicate that he did not want to talk to the officers. The credibility of witnesses at a suppression hearing is within the sound discretion of the trier of fact, who may accept or reject, in whole or in part, the testimony of any witness. Im-braguglio, 08-64 at 12, 987 So.2d at 264. Based on the evidence, we cannot find that the trial court abused its discretion in finding the police officers’ testimonies more credible in this respect.

b) Right to remain silent and voluntariness of statement

Law enforcement officers are required to explain the special procedural safeguards in Miranda to the suspect before initiating a custodial interrogation that deprives the suspect of his freedom of action. Mollette, 08-138 at 10, 2 So.3d at 467. Miranda does not require that a defendant exercise his right to remain silent by any particular phrasing. State v. Taylor, 01-1638, p. 6 (La.1/14/03), 838 So.2d 729, 739, cert. denied, 540 U.S. 1103, 124 S.Ct. 1036, 157 L.Ed.2d 886 (2004). However, an interrogation must cease if a criminal suspect indicates in any manner prior to or during questioning that he wishes to remain silent. Miranda, 384 U.S. at 473-74, 86 S.Ct. at 1612; Mollette, 08-138 at 9, 2 So.3d at 461. Nevertheless, law enforcement officers are not barred from reinitiating contact with the suspect. Taylor, 01-1638 at 7, 838 So.2d at 739.

In State v. Robertson, 97-177 (La.3/4/98), 712 So.2d 8, cert. denied, 525 U.S. 882, 119 S.Ct. 190, 142 L.Ed.2d 155 (1998), the defendant, who was convicted of first degree murder, claimed the trial court erred in admitting his confession because it was the result of police coercion after he had invoked his right to remain silent. The defendant argued that he invoked his fifth amendment right to remain silent when he responded “uh uh” to questioning about whether he | ]Swanted to say anything more about what happened. The Louisiana Supreme Court found that the defendant’s indication he had nothing further to say about the crimes did not reasonably suggest a desire to end all questioning or to remain silent. Rather, the defendant’s negative reply, “uh uh,” could not plausibly be understood as an invocation, ambiguous or otherwise, to cut off police questioning in all respects. Instead, the defendant’s willingness to talk to authorities even after the “uh, uh” response was indicated by his continuing to respond to questions and to assert his innocence. The Court noted that the defendant never indicated he did not want to speak to the police at all, only that he had nothing to say about the murders. The fact that the defendant continued to speak to police reflected an intent to continue the exchange. Robertson, 97-177 at 27, 712 So.2d at 31.

In the present case, the Defendant’s statement to the officers that he knew nothing about the murder was not equivalent to an exercise of his right to remain silent. Furthermore, he continued to answer the officers’ questions, which reflects intent to continue the exchange. That intent satisfies the fundamental purpose of Miranda, which is to “assure that the individual’s right to choose between speech and silence remained] unfettered throughout the interrogation process.” See, Robertson, 97-177 at 27-28, 712 So.2d at 31, quoting State v. Green, 94-887, p. 10 (La.5/22/95), 655 So.2d 272, 287-88, n. 8. Since the Defendant did not invoke his right to remain silent during questioning, it was permissible for the police to continue to question him.

An accused’s statement obtained by direct or implied promises, or by the exertion of improper influence must be considered involuntary and, therefore, inadmissible. Mollette, 08-138 at 10, 2 So.3d at 467. A determination of whether the accused’s waiver of constitutional rights was knowingly and voluntarily made |Mis determined on a case-by-case basis, and rests upon the totality of the circumstances. Id.; Taylor, 01-1638 at 7, 838 So.2d at 739.

Before an inculpatory statement made during a custodial interrogation may be introduced into evidence, the State must prove beyond a reasonable doubt that the accused was first advised of his Miranda rights, that the accused voluntarily and intelligently waived them, and that the accused’s statement was made not made under the influence of fear, intimidation, menaces, threats, inducement or promises. La. R.S. 15:451; Mollette, OS-138 at 9-10, 2 So.3d at 467. The State cannot rely on evidence of general disclaimers of inducements or promises. Mollette, 08-138 at 10, 2 So.3d at 467. Rather, when the defendant’s claims of police misconduct in eliciting a confession are raised, the State must specifically rebut the allegations. Id.

In Mollette, the defendant claimed the trial court erred in denying his motion to suppress his statements because his confession was obtained through threats of arrest made against his family and by the officer pointing a gun pointed towards him. There, the interviewing officer testified that he advised the defendant of his rights and completed the waiver of rights form with the defendant. According to the officer, the defendant verbally acknowledged that he understood his rights and also indicated that he understood his rights by initialing by each one of them on the form. In addition, the defendant acknowledged both verbally and in writing on the form that he wished to waive his rights and give a statement. The officer believed that the defendant clearly understood and acknowledged his rights as he never indicated that he did not understand the process or that he did not want to give a statement. Furthermore, the interviewing officer testified that no threats were made against the defendant or his family during the entire interview process. He denied that the other officer involved in the interview produced, showed, or 11spointed a gun at the defendant during the interview process in order to obtain his statements.

After our review, we concluded that the trial judge did not abuse his discretion in determining the statements were admissible. We noted that the trial judge’s determination of admissibility of a statement and its conclusions on the credibility and weight of the testimony related to the voluntariness of the statement are entitled to great weight and will not be overturned unless unsupported by the evidence. Mol-lette, 08-138 at 13, 2 So.3d at 469.

In this ease, Major Hay denied that he went into the interrogation room and placed his gun on the table. He said that the Defendant’s claim was an absolute lie. Furthermore, he described the procedure he implemented to prevent this type of accusation which requires any officer to be unarmed when entering an interrogation room.

We find that the trial judge did not abuse his discretion in determining the statements were admissible. The trial judge’s determination of admissibility was based on the credibility and weight of the testimony. As the trial judge’s determination is supported by the evidence, it is entitled to great weight and will not be overturned.

2) Motion for Mistrial

In the second assignment of error, the Defendant contends that the trial judge erred in denying the Motion for Mistrial because the opinion testimony given by Detective Stelly caused substantial harm to his fundamental right to due process.

Detective Stelly testified that he obtained an audio-taped confession from co-defendant Babin. During his testimony, Detective Stelly was asked if Babin admitted to being part of this murder, to which he replied, “Yes, sir.” The defense objected, claiming that the information on the tape was hearsay. Subsequently, 11fiafter the State requested that the tape be played for the jury, the defense moved for a mistrial. The defense claimed that the State’s question was highly prejudicial because Babin did not mention anything on the tape about being part of a murder. After argument, the trial judge listened to the tape and then denied the defense motion.

The Defendant claims that Detective Stelly’s opinion that Babin admitted to committing the murder was a direct “rebuke of his trial strategy” in that it indicated that the Defendant was not guilty because he lacked the intent to cause harm or death to the victim. The Defendant contends that the Detective’s statement also had the effect of portraying the Defendant as a “willing co-participant.”- The Defendant argues that the opinion also was a comment on the Defendant’s guilt, which was a determination to be made by the trier of fact and, therefore, Detective Stelly’s testimony should not have been permitted.

The State responds that Detective Stelly’s statement only relates to the culpability of co-defendant Babin, not the Defendant. Furthermore, the State contends that Detective Stelly’s comment was a true statement of fact. The State argues that because of the overwhelming evidence presented, the comment by Detective Stelly does not rise to the degree of prejudice warranting reversal.

La.C.Cr.P. art. 771 states:

In the following cases, upon the request of the defendant or the state, the court shall promptly admonish the jury to disregard a remark or comment made during the trial, or in argument within the hearing of the jury, when the remark is irrelevant or immaterial and of such a nature that it might create prejudice against the defendant, or the state, in the mind of the jury:
(1) When the remark or comment is made by the judge, the disti’ict attorney, or a court official, and the remark is not within the scope of Article 770; or
(2) When the remark or comment is made by a witness or person other than the judge, district attorney, or a court official, regardless |17of whether the remark or comment is within the scope of Article 770.
In such cases, on motion of the defendant, the court may grant a mistrial if it is satisfied that an admonition is not sufficient to assure the defendant a fair trial.

See also State v. Smothers, 02-277, p. 16, 836 So.2d at 559, 569, writ denied, 03-0447 (La.10/10/03), 855 So.2d 329.

La.C.Cr. P. art. 775 states that the defendant’s motion for a mistrial shall be ordered, “when prejudicial conduct in or outside the courtroom makes it impossible for the defendant to obtain a fair trial, or when authorized by Article 770 or 771.” A mistrial is a drastic remedy that is only authorized where substantial prejudice will otherwise result to the accused. Smothers, 02-277 at 16, 836 So.2d at 569.

The testimony of a lay witness in the form of opinions or inferences, who is not testifying as an expert, is limited to those opinions or inferences that are rationally based on the perception of the witness and are helpful to a clear understanding of the testimony or the determination of a fact in issue. La. C.E. art. 701; Imbraguglio, 08-64 at 16, 987 So.2d at 266. The general rule is that a lay witness can only testify to the facts within their knowledge and not to impressions or opinions. Imbraguglio, 08-64 at 16, 987 So.2d at 266. A lay witness is permitted to draw reasonable inferences from his own personal observations, as long as the lay witness also states the observed facts. Id.

“Testimony in the form of an opinion or inference otherwise admissible is not to be excluded solely because it embraces an ultimate issue to be decided by the trier of fact.” La. C.E. art. 704. See also State v. Higgins, 03-1980, p. 21 (La.4/1/05), 898 So.2d 1219, 1284, cert. denied, 546 U.S. 883, 126 S.Ct. 182, 163 L.Ed.2d 187 (2005). Therefore, the fact that an opinion or inference embraces an ultimate issue in a case does not preclude admissibility. La. C.E. art. 704, 1^Comment (c). See also State v. King, 99-1279, p. 5 (La.App. 5 Cir. 4/25/00), 760 So.2d 540, 543, writ denied, 00-1498 (La.3/16/00), 787 So.2d 298 and 00-1452 (La.3/16/01), 787 So.2d 298.

A trial judge is required to admonish the jury to disregard a comment made within its hearing that is irrelevant, immaterial or prejudicial to the defendant or the State, when either the defendant or the State requests an admonishment. La. C.Cr.P. ait. 771; Smothers, 02-277 at 15, 836 So.2d at 569. La.C.Cr.P. art. 771 applies to remarks or comments made by a witness regardless of whether the remark or comment is within the scope of La. C.Cr.P. art. 770. Smothers, 02-277 at 16, 836 So.2d at 569.

In Higgins, a lay witness was permitted to testify that it appeared to her that a robbery was taking place. The Louisiana Supreme Court found that the trial court did not abuse its broad discretion in admitting the evidence because the lay witness’s observations may have been rationally based on the witness’s perception, as well as the perception of any layperson, of the interaction between the defendant and the victim. Higgins, 03-1980 at 21-22, 898 So.2d at 1234.

In Imbraguglio, this Court found that the police officer’s opinion testimony about the truthfulness of the defendant’s explanations for the injuries sustained by the victim were admissible because it was based on his own personal observations of the defendant throughout the interview process. Imbraguglio, 08-64 at 16, 987 So.2d at 267.

li3In this case, Detective Stelly said that he assisted State Fire Marshall Carter in obtaining Babin’s recorded confession after Babin’s arrest and after he waived his rights. Furthermore, Babin testified that he gave a free, voluntary, and truthful audio-taped statement to Detective Stelly implicating all three of the defendants in the events leading to the victim’s death. Therefore, we find that the testimony was admissible as it was based on the Detective’s personal observations. Furthermore, the testimony was cumulative, as well.

The Defendant also claims that Detective Stelly gave a legal opinion regarding the scope of the second degree murder statute. However, a review of the testimony shows that the Detective did not give a legal opinion on the second degree murder statute prior to the trial judge’s ruling on the Defendant’s motion for mistrial. Thus, we find this argument is not supported by the testimony.

3) Error Patent Review

The Defendant requests an error patent review. This Court routinely reviews the record for errors patent in accordance with La.C.Cr.P. art. 920. State v. Oliveaux, 312 So.2d 337 (La.1975); State v. Hicks, 08-402, p. 13 (La.App. 5 Cir. 12/16/08), 3 So.3d 539, 547.

Our error patent review reveals that the trial judge failed to correctly notify the Defendant at sentencing of the two-year prescriptive period for filing postcon-viction relief pursuant to La.C.Cr.P. art. 930.8 A, which states in pertinent part, “No application for post-conviction relief, including applications which seek an out-of-time appeal, shall be considered if it is filed more than two years after the judgment of conviction and sentence has become final.” [Emphasis added.] Here, the sentencing transcript reveals that the trial judge informed the Defendant that he |aihad “two years to file an application for post-conviction relief. That is two years after your sentence becomes final.... ” [Emphasis added.]

We have previously held that the failure of the trial court to advise a defendant that the prescriptive period runs from the time his conviction and sentence become final renders the advisement incomplete. State v. Holmes, 08-719, p. 14 (La.App. 5 Cir. 3/10/09), 10 So.3d 274, 283. In the past, we ordered the trial court to properly advise the defendant of the prescriptive period for filing an application for post-conviction relief pursuant to La. C.Cr.P. art. 930.8 by written notice within ten days of the rendition of this Court’s opinion and then to file written proof in the record that the defendant received the notice. Id. However, recently we have chosen to correct this error in the opinion rather than by remanding the case, citing State v. Morris, 40,322, pp. 4-5 (La.App. 2 Cir. 1/25/06), 920 So.2d 359, 363. See Holmes, 08-719 at 14, 10 So.3d at 283; State v. Davenport, 08-463, pp. 10-11 (La. App. 5 Cir. 11/25/08), 2 So.3d 445, 451, writ denied, 2009-0158 (La.10/16/09), 19 So.3d 473,.

We find this procedure an appropriate method of notifying the Defendant of the prescriptive period for post-conviction relief.

Therefore, the Defendant is hereby advised by this opinion that, pursuant to La.C.Cr.P. 930.8, no application for post-conviction relief, including an application which seeks an out of time appeal, shall be considered if it is filed more than two years after the judgment of conviction and sentence has become final under the provisions of La.C.Cr.P. arts. 914 and 922.

Accordingly, the Defendant’s conviction is affirmed.

AFFIRMED

      . A. Second degree murder is the killing of a human being:
      (1) When the offender has a specific intent to kill or to inflict great bodily harm; or
      (2) When the offender is engaged in the perpetration or attempted perpetration of aggravated rape, forcible rape, aggravated arson, aggravated burglary, aggravated kidnapping, second degree kidnapping, aggravated escape, assault by drive-by shooting, armed robbery, first degree robbery, second degree robbery, simple robbery, cruelty to juveniles, second degree cruelty to juveniles, or terrorism, even though he has no intent to kill or to inflict great bodily harm.
      (3) When the offender unlawfully distributes or dispenses a controlled dangerous substance listed in Schedules I through V of the Uniform Controlled Dangerous Substances Law, or any combination thereof, which is the direct cause of the death of the recipient who ingested or consumed the controlled dangerous substance.
      (4) When the offender unlawfully distributes or dispenses a controlled dangerous substance listed in Schedules I through V of the Uniform Controlled Dangerous Substances Law, or any combination thereof, to another who subsequently distributes or dispenses such controlled dangerous substance which is the direct cause of the death of the person who ingested or consumed the controlled dangerous substance.
      B. Whoever commits the crime of second degree murder shall be punished by life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence.

      . The Defendant was originally indicted for first degree murder along with co-defendants, Lawrence Anthony Babin and Bryan Stewart. The indictment was later amended. The cases against the co-defendants were eventually severed.

      . Referred to herein as Detective St. Martin.

      . The Defendant's co-defendant is named Bryan Stewart, but goes by the names Brian Stewart, Brian Stuart, and Brian Gilmore as well. Stewart is also known as "BG."

      . La.C.Cr.P. art. 770 provides:
      Upon motion of a defendant, a mistrial shall be ordered when a remark or comment, made within the hearing of the jury by the judge, district attorney, or a court official, during the trial or in argument, refers directly or indirectly to:
      (1)Race, religion, color or national origin, if the remark or comment is not material and relevant and might create prejudice against the defendant in the mind of the juiy;
      (2) Another crime committed or alleged to have been committed by the defendant as to which evidence is not admissible;
      (3) The failure of the defendant to testify in his own defense; or
      (4) The refusal of the judge to direct a verdict.
      An admonition to the jury to disregard the remark or comment shall not be sufficient to prevent a mistrial. If the defendant, however, requests that only an admonition be given, the court shall admonish the jury to disregard the remark or comment but shall not declare a mistrial.


text:
    TREEN CONSTRUCTION, INC. v. Charles K. REASONOVER.
    No. 09-CA-438.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 29, 2009.

      Stuart G. Richeson, Attorney at Law, New Orleans, LA, for Appellee-Defen-dant/Plaintiff.
    Peter B. Tompkins, Donald R. Wing, Attorney at Law, New Orleans, LA, for Appellant-Plaintiff/Defendant.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., SUSAN M. CHEHARDY and MARC E. JOHNSON.
   MARC E. JOHNSON, Judge.

_JjThe Plaintiff, Treen Construction, Inc., appeals a judgment in favor of the Defendant, Charles Reasonover, in a construction contract dispute. We affirm.

In November of 2005, the Plaintiff began work on the Defendant’s home to repair damages sustained by Hurricane Katrina. Pursuant to an oral agreement, the Plaintiff billed the Defendant for the costs of the job, plus 10% overhead and 10% profit. The Defendant paid approximately $61,000 during the course of the work, but refused to pay the last five invoices.

On October 13, 2006, the Plaintiff filed a lien in the amount of $5,647.34 against the property, and also filed a petition to enforce the lien. The Defendant filed an answer and reconventional demand contending that no further amounts were due, and seeking damages suffered as a result of errors and overcharges in the amount of $11,613.07.

The hen was subsequently dismissed because the contract was not in writing. A judge trial was held on the merits of the claims on November 6, 2008, after which judgment was rendered in favor of the Plaintiff for $721.43. The trial lajudge disallowed the Plaintiffs charges of $4,925.91 that were related to the kitchen cabinets, the granite counter tops, the patio doors, and for double billing the Defendant for profit and overheard from his son’s company. On the reconventional demand, the trial judge awarded the Defendant $4,312.73.

On appeal, the Plaintiff asserts that the trial judge erred in denying all but $721.43 of its claim. It further asserts that the trial judge erred in granting refunds on invoices that the Defendant previously paid, and thus waived his right to contest the payments, and in granting the Defendant’s reconventional demand regarding the patio doors, cabinets, and countertops. He also asserts that the trial judge erred in disallowing the profit and overhead charge for the SW Louisiana Permit job, in awarding costs for the cost of cleaning air conditioning ducts, and in awarding costs to replace the security system.

Contractor’s burden of proof

The trial judge found that the Plaintiff failed to produce any invoices to support its claims. The Plaintiff argues that the invoices were received into evidence at the trial in connection with the testimony of John Treen.

The standard of review in a cost plus contract case is manifest error, or whether the findings of fact were clearly wrong. Bishop v. Shaw, 43,137, p. 3-4 (La.App. 2 Cir. 3/12/08), 978 So.2d 568, 571-572; Burdette v. Drushell, 01-2494, p. 5 (La.App. 1 Cir.12/20/02), 837 So.2d 54, 59, writ denied, 03-0682 (La.5/16/03), 843 So.2d 1132.

In reviewing the case for manifest error, where there is a conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that |4its own evaluations and inferences are as reasonable. Rosell v. ESCO, 549 So.2d 840, 844 (La.1989); Himel v. State ex rel. Dept. of Transp. and Development, 04-274, p. 8 (La.App. 5 Cir.1/12/04), 887 So.2d 131,137, writ denied, 04-2802 (La.3/18/05), 896 So.2d 999. The issue to be resolved by the reviewing court is not whether the factfinder was right or wrong, but whether its conclusion was a reasonable one. Stobart v. State, Through DOTD, 617 So.2d 880, 882 (La.1993); Himel, 04-274 at 8, 887 So.2d at 138; LeBlanc v. Baxter, 05-33, p. 19 (La.App. 5 Cir. 5/31/05), 905 So.2d 415, 426. Thus, where two permissible views of the evidence exist, the factfinder’s choice between them cannot be manifestly erroneous or clearly wrong. Stobart, 617 So.2d at 882; Himel, 04-274 at 8, 887 So.2d at 138. Only where the documents or objective evidence so contradict a witness’s story, or the story itself is so internally inconsistent or implausible on its face that a reasonable factfinder would not credit the witness’s story, may the court of appeal find manifest error, even in a finding purportedly based upon a credibility determination. Rosell, 549 So.2d at 844-45; Himel, 04-274 at 8, 887 So.2d at 138.

In a cost plus contract, the owner agrees to reimburse the contractor for the costs of material and labor and to pay a percentage of those costs as his profit. Bishop, 43,137 at 5, 978 So.2d at 572; Burdette, 01-2494 at 5, 837 So.2d at 59. Under a cost plus contract, the contractor may charge only those costs that are shown to be reasonable and proper. Bishop, 43,137 at 5, 978 So.2d at 572; Burdette, 01-2494 at 5, 837 So.2d at 59. When the owner denies his indebtedness to the contractor, the contractor has the burden to itemize and prove his costs. Bishop, 43,-137 at 5, 978 So.2d at 572; Burdette, 01-2494 at 5, 837 So.2d at 59.

|,-,The Plaintiff relies on the unpublished case of Meg-A Builders, L.L.C. v. Maggio, 2008 WL 5377614, 4 (La.App. 1 Cir. 12/23/08). There, the court summarized:

Meg-A Builders responded to the Maggios’ letter requesting an itemization of the expenses with an invoice that detailed labor and materials. The trial court evaluated each item of expense and deducted the markup of forty percent on labor for which Meg-A Builders failed to offer evidence to support. While the Maggios complain that the itemization provided to them by Meg-A Builders and introduced into evidence does not set forth the actual material lists, receipts, check stubs showing payment, labor time records, invoices of subcontractors, or other records as proof to substantiate the charges billed to them, they neither demanded such through discovery nor presented evidence challenging Meg-A Builders’ testimony and itemization of the expenses. At trial, the primary issue was whether the parties had entered into a costs plus contract. [Emphasis added.]

The court found no manifest error in the judgment granting the contractor relief. However, the dissent disagreed because the Plaintiff failed to present any evidence proving that it paid the costs listed in the invoice sued upon. It cited Burdette. It also cited M. Carbine Restoration, Ltd. v. Sutherlin, 544 So.2d 455, 458-59 (La.App. 4 Cir.1989), writ denied,, 547 So.2d 355. In that case, the Fourth Circuit Court of Appeal stated:

Once the existence of a cost-plus contract has been established, the contractor also has a duty to submit an itemization of each and every expenditure made during the course of the project because there is an implicit agreement between the parties that the costs will be reasonable. Presentation of invoices and statements of accounts, accompanied by proof of payment, is the proper method of proving the cost of improvements. Proof of payment can be established by presentation of invoices marked “paid.” [Emphasis added.]

Id., 544 So.2d at 458-59.

We agree with the decisions in Burdette, Bishop,M. Carbine Restoration, Ltd., and the dissent in Meg-A Builders, L.L.C. The contractor has the burden of producing corroborating evidence to support the invoices for alleged costs incurred in a cost plus contract.

pin this case, the Plaintiff did not introduce the invoices or any other evidence to support the charges at trial. The invoices were introduced by the Defendant only to show that there was a cost plus contract. John Treen (Treen) testified that he never maintained any records supporting the charges because the Plaintiff charged either its cost or what the insurance company paid for the repairs.

Furthermore, we also note that the invoices are not reliable. Seven electrical work invoices describe the same work, indicating it had been recalculated three times. One particular invoice was for a sink, which had to be redone because the Plaintiff overcharged the Defendant. Another invoice was changed after receiving the Plaintiffs typed complaints, for which the Plaintiff gave the Defendant a credit of over $1,100 (for a charge that was not yet at issue).

As found by the trial judge, the Plaintiff had the burden of proving each and every item of expense and should have presented evidence supporting every invoice. See, Bishop, 43,137 at 5, 978 So.2d at 572; Burdette, 01-2494 at 5, 837 So.2d at 59; M. Carbine Restoration, Ltd., 544 So.2d at 458. Although the invoices itemize various items, they are self-serving. Without any support for the amounts listed, we find that the Plaintiff failed to bear its burden of proving that the charges were reasonable and proper. Thus, the trial judge did not err in rejecting the total amount of the Plaintiffs claim.

Waiver

The Plaintiff next contends that the trial court erred in granting Defendant’s reconventional demand to the extent that it granted refunds on invoices that the Defendant had previously paid. The trial judge awarded the Defendant the damages documented at trial that were caused by the mistakes and misrepresentation of the Plaintiff, minus the claim for the storage of certain rugs. |7The Plaintiff contends that by previously paying those invoices, the Defendant admitted the correctness of the totals due and cannot now challenge those invoices.

The Plaintiff asserts that “where an account is delivered to the debtor and the debtor makes no objection thereto within a reasonable time, the failure to object is considered as an admission of the correctness of the account.” Red Barn Chemicals, Inc. v. Lassalle, 350 So.2d 1315, 1317 (La.App. 3 Cir.1977).

The Plaintiffs argument is one of estop-pel. Estoppel is a type of waiver, which might, depending on the facts, bar the Defendant from challenging the invoices. Estoppel, however, is an affirmative defense that must be pleaded specially in the answer. La. C.C.P. art. 1005. The Plaintiffs answer to the reconventional demand does not contain an affirmative defense of estoppel. The failure to do so operates as a waiver of the Plaintiffs defense that the Defendant is estopped from challenging charges that he paid. Consequently, we will not consider the argument.

Profit and overhead refund

The Plaintiff next claims that the trial judge erred in awarding the Defendant a refund on the profit and overhead charges related to the patio doors, cabinets, and countertops. It argues that the mark-up for profit and overhead is compensation for administrative supervision on the project, not for labor performed by the general contractor at the site. Furthermore, it contends that the Defendant knew the price of the patio doors and cabinets, and there is no evidence showing he did not know the price of the counters when they were ordered. The Plaintiff argues that it is irrelevant whether the Defendant could have gotten the items cheaper.

|sThe Defendant testified that the Plaintiff installed cabinets, granite countertops, and patio doors that were more expensive than the Defendant expected. The Defendant relied on the Plaintiffs representations that the Plaintiff could obtain better quality cabinets and countertops at a lower price than the Defendant would pay at Lowe’s or Home Depot, because of the contractor’s discount. This dissuaded the Defendant from shopping prices. Yet, the Plaintiff charged much more than the Defendant would have had to pay for similar quality items at retail suppliers. Treen also told the Defendant that delivery of some of the items would be faster, which was not the case.

In addition, the Defendant noted that the Plaintiff placed the raised counter in the kitchen too far out so that it impedes the aisle, and one of the kitchen drawers had to be fixed because it would not close.

The evidence also shows that there were numerous delays in the project either unexplained or because the Plaintiff made mistakes. The kitchen cabinets’ spaces were measured wrong, causing the Plaintiff to remove and reinstall them correctly. The Plaintiff also failed to install an electrical outlet above the granite, requiring the electrician to return. In addition, the Plaintiff ordered the wrong type of patio doors which the Defendant accepted because he did not want to start that project over.

The Defendant complained to the Plaintiff about the delays because he was not able to live in his house until the repairs to the damages from the hurricane were completed. He noted that most of his neighbors with similar problems were in their homes six months before this job was finished.

After weighing the credibility of the witnesses, reviewing the documents submitted by the Defendant detailing the mistakes and/or misrepresentations, and considering the delays involving these items, the trial judge concluded that the ^Defendant was entitled to a refund of the profit and overhead charges. After our review, we find no manifest error in this regard.

Air conditioning duct cleaning

The Plaintiff next argues that the trial judge erred in granting the Defendant’s claims for the cost of cleaning the air conditioning ducts due to the sanding work. It contends that the ducts needed cleaning before the sanding work began since they had not been cleaned in over seventeen years.

The Defendant testified that he had to incur expenses to have his air conditioning ducts cleaned after powder created by the sanding of the concrete floors spread throughout the system and his home. According to the Defendant, the Plaintiff and/or sanding workers neglected to turn off the air conditioner during the process. The powder itself became contaminated with polluted water that had been in the house for several days. The Defendant admitted that he had the ducts “sanitized” for mold before the sanding took place because there had been so much concern about mold after Hurricane Katrina. However, the ducts did not require cleaning at that time.

After our review, we find no manifest error in the trial judge’s award to the Defendant for his air conditioning cleaning costs.

Security alarm pads

The Plaintiff argues that there was no evidence that the Plaintiff lost or disposed of the security system pads.

The Defendant testified that he had to replace his alarm system because the Plaintiffs workers damaged the system. He testified that they mistakenly covered the alarm system with sheetrock during the project, damaged the wiring, and lost the alarm system pads. He said that he never saw the pads after the Plaintiffs workers disposed of the excess sheetrock in the trash.

| u>Again, the trial judge weighed the evidence and credibility of the witnesses and found in favor of the Defendant. As the contractor is responsible for any damage that is incurred as a result of the work he supervises, we find no error in the trial judge’s ruling awarding damages to the Defendant for these extra expenses.

Profit and overhead for sanding job

The Plaintiff next argues that the trial judge erred in awarding the Defendant a refund on his profit and overhead that it charged for the sanding job performed by SW Louisiana Permit. Although the company belongs to Treen’s son, the Plaintiff contends that there was no claim or evidence that the Plaintiff owned any part of that company.

Both the Plaintiff and SW Louisiana Permit charged the Defendant separately for overhead and profit, resulting in a 40% expense to the Defendant. Yet, the Plaintiff testified that he never charged more than one 20% allowance for overhead and profit, pursuant to the allowance set by the insurance adjuster. Thus, he violated his own policy by including a separate charge for this in his bill. Furthermore, Treen testified that he could have contracted directly to have the work done without the Defendant incurring an additional 20%, but inexplicably failed to do so.

In addition, the Defendant testified that the sanding was unnecessary because he later found out that the bumps on the floor could only be smoothed manually by using a chisel and hammer, and that no one uses a sander for this type of floor problem. According to the Defendant, the job was also worthless, as the | ndiamond encrusted sander that Treen’s son used did not work and the work had to be abandoned after a short while because the sanding sheets tore.

The evidence supports a reduction in the profit and overhead charges for the sanding job. Consequently, we find that the trial judge did not commit manifest error in awarding the Defendant a reduction for the excessive charge.

DECREE

Accordingly, the judgment of the trial court is hereby affirmed. The costs of this appeal are to be paid by the Appellant.

AFFIRMED.

      . The trial judge initially awarded the Defendant $9,238.64, but reduced it to $4,312.73 in a subsequent amended judgment since part of the $9,238.64 was included in the reduction of the Plaintiff’s award.

      . We also note that the Defendant complained of the charges within a reasonable time.

      . The exact problem with the floor is unclear.


author: FREDERICKA HOMBERG WICKER, Judge.

text:
    STATE of Louisiana v. Randolph J. ALLEMAND.
    No. 09-KA-590.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 29, 2009.

      Paul D. Conniek, Jr., District Attorney Terry M. Boudreaux, Assistant District
    Attorney, Gretna, LA, for Plaintiff/Appel-lee.
    Jane L. Beebe, Attorney at Law, New Orleans, LA, for Defendant/Appellant.
    Panel composed of MARION F. EDWARDS, FREDERICKA HOMBERG WICKER, and JUDE G. GRAVOIS, Judges.
   FREDERICKA HOMBERG WICKER, Judge.

|2In this criminal proceeding, defendant/appellant Randolph J. Allemand appeals his convictions and sentences. We affirm the convictions and sentences, finding no non-frivolous issues to be raised on appeal and no ruling of the trial court that arguably supports the appeal. We also grant appellate counsel’s motion to withdraw as counsel.

On February 10, 2006, the state filed a two-count bill of information charging the defendant with sexual battery (Count 1) and aggravated incest (Count 2), violations of La. R.S. 14:43.1 and 14:78.1, respectively. The offenses allegedly occurred on or between March 10 and December 11, 2005. The alleged victim was five years old at the time of the offenses. Although defense counsel filed omnibus pretrial motions, there were no hearings held on the motions and consequently no rulings. On August 21, 2006, after being advised of his Boykin constitutional rights, the defendant withdrew his pleas of not guilty and pleaded guilty as charged to both offenses. The trial judge sentenced the defendant to the negotiated eight-) year3 term of imprisonment on Count 1, sexual battery. The state filed a second felony habitual offender bill of information seeking to enhance the sentence on Count 2, aggravated incest. After being advised of his habitual offender rights, the defendant stipulated to being a second felony offender as to Count 2. The trial judge imposed a 20-year enhanced sentence on Count 2 to run concurrently with the eight-year sentence on Count 1. The trial judge properly granted the defendant an out-of-time appeal.

FACTS

Since no motion hearings or trial were held in this case, we glean the underlying facts from the bill of information and the guilty plea colloquy. In Count 1 of the bill of information, the state alleged that on or between March 10, 2005 and December 11, 2005, defendant committed sexual battery upon a known juvenile whose date of birth was March 10, 2000, by enticing the child to “masturbate his penis.” In Count 2, the state alleged that between March 10 and December 11, 2005, the defendant committed aggravated incest upon a known juvenile whose date of birth was March 10, 2000, by bathing in the child’s presence; and that defendant was the child’s uncle. During the guilty plea colloquy, the defendant admitted that when he was 44 years of age and while he was taking a bath, he had his five-year-old niece rub medicine on his penis. He also admitted that he engaged in indecent behavior by bathing with the minor child.

\ ANDERS BRIEF

Under the procedure set forth in State v. Benjamin, 573 So.2d 528, 530 (La.App. 4 Cir.1990), appointed appellant counsel has filed an Anders brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967) and State v. Jyles, 96-2669, p. 3 (La.12/12/97), 704 So.2d 241, 242 (per curiam), asserting that she has thoroughly reviewed the trial court record and cannot find any non-frivolous issues to raise on appeal. Accordingly, appointed counsel requests to withdraw as counsel of record. The state responds that there are indeed no non-frivolous issues defendant might raise on appeal, and that counsel should be allowed to withdraw.

DISCUSSION

In Anders, the United States Supreme Court stated that appointed appellate counsel may request permission to withdraw if he finds his case to be wholly frivolous after a conscientious examination of it. The request must be accompanied by “ ‘a brief referring to anything in the record that might arguably support the appeal’ ” so as to provide the reviewing court “with a basis for determining whether appointed counsel have fully performed their duty to support their clients’ appeals to the best of their ability” and to assist the reviewing court “in making the critical determination whether the appeal is indeed so frivolous that counsel should be permitted to withdraw.” McCoy v. Court of Appeals of Wisconsin, Dist. 1, 486 U.S. 429, 439, 108 S.Ct. 1895, 1902, 100 L.Ed.2d 440 (1988).

In State v. Jyles, 96-2669 at 2, 704 So.2d at 241, the Louisiana Supreme Court stated that an Anders brief need not tediously catalog every meritless pretrial motion or objection made at trial with a detailed explanation of why the motions or objections lack merit. The supreme court explained that an Anders brief must demonstrate by full discussion and analysis that appellate counsel “has cast an advocate’s eye over the trial record and considered whether any ruling made by the trial court, subject to the contemporaneous objection rule, had a significant, adverse impact on shaping the evidence presented to the jury for its consideration.” State v. Jyles, supra.

In evaluating an appeal for compliance with Anders, an appellate court must conduct an independent review of the record to determine whether the appeal is wholly frivolous. State v. Bradford, 95-929, p. 4 (La.App. 5 Cir. 6/25/96), 676 So.2d 1108, 1110. If, after an independent review, the reviewing court determines there are no non-frivolous issues for appeal, it may grant counsel’s motion to withdraw and affirm the defendant’s conviction and sentence. However, if the court finds any legal point arguable on the merits, it may either deny the motion and order the court-appointed attorney to file a brief arguing the legal point(s) identified by the court, or grant the motion and appoint substitute appellant counsel. Id.

The defendant’s appellate counsel asserts that after a detailed review of the record, she could find no non-frivolous issues to raise on appeal. Counsel correctly observes there is no trial court ruling the defendant might challenge. She maintains that the district court adhered to all constitutional requirements in conducting the guilty plea colloquy, and that there is no issue the defendant might raise regarding the validity of his guilty pleas. Counsel further notes that there is |,¡no non-frivolous issue defendant might raise regarding his sentences. She affirms that both sentences were within statutory limits.

Appellate counsel has filed a motion to withdraw as attorney of record, which states she complied with the requirements of Anders, and that she notified the defendant of his right to file a pro se brief in this matter. Additionally, on August 10, 2009, this Court sent the defendant a letter by certified mail informing him that an Anders brief was filed and that he would have until September 9, 2009 to file a pro se supplemental brief. The defendant has not contacted this court nor has he filed a supplemental brief.

An independent review of the record supports appellate counsel’s assertion that there are no non-frivolous issues to be raised on appeal. When a defendant pleads guilty, he normally waives all non-jurisdictional defects in the proceedings leading up to the guilty plea and precludes review of such defects either by appeal or post-conviction relief. State v. Wingerter, 05-697, p. 5 (La.App. 5 Cir. 3/14/06), 926 So.2d 662, 664. The defendant filed several pre-trial motions, but none of those motions were heard or ruled on in the district court. Consequently, there were no trial court rulings defendant could have preserved for appeal under State v. Crosby, 338 So.2d 584 (La.1976).

The record shows the district court properly advised defendant of his right to a jury trial, his right of confrontation, and his privilege against self-incrimination, as required by Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). The judge ascertained that defendant understood those rights and that he wished to waive them and plead guilty. Additionally, defendant, his attorney, and the district judge signed a contemporaneous waiver of rights form which |7enumerated defendant’s rights and detailed the sentences he would receive pursuant to his guilty plea.

The defendant entered an admission to the allegations in the habitual offender bill of information. The district court properly advised him of his right to a habitual offender hearing and his right to remain silent. The defendant stated he understood those rights and wished to waive them.

The defendant’s sentence on Count 1 was imposed in accordance with a plea agreement. La.C.Cr.P. art. 881.2 A(2) provides, “The defendant cannot appeal or seek review of a sentence imposed in conformity with a plea agreement which was set forth in the record at the time of the plea.” The defendant’s sentence on Count 2 was imposed in conformity with a sentencing agreement. A defendant is precluded from raising a claim of excessiveness on appeal when his sentence was imposed in conformity with a sentencing agreement which is set forth in the record at the time he admitted to the allegations in the habitual offender bill. State v. Cross, 06-866, p. 4 (La.App. 5 Cir. 4/11/07), 958 So.2d 28, 30. Also, both of defendant’s sentences fell within the statutory limits. During the time span in which defendant’s offenses were alleged to have occurred, the sentencing range for sexual battery was imprisonment, with or without hard labor, and without benefit of parole, probation, or suspension of sentence, for not more than ten years. La. R.S. 14:43.1(C). For aggravated incest, the defendant could have received a mandatory fíne not to exceed $50,000, or a term of imprisonment, with or without hard labor, for not less than five years or more than 20 years, or both. La. R.S. 14:78.1(D). For a second felony offender under the aggravated incest statute, the | ^sentencing range was ten to 40 years at hard labor, without benefit of probation or suspension of sentence. Id.; La. R.S. 15:529.1 A(l)(a); La. R.S. 15:529.1(G).

Appellate counsel complied — albeit minimally — with the requirements of Anders and Jyles. In her brief, counsel lists the issues she considered and ruled out as possible appeal claims, but does not include citation to authority. To comply with Jyles, appellate counsel must not only review the procedural history of the case and the evidence presented at trial. His brief must contain “ ‘a detailed and reviewable assessment for both the defendant and the appellate court of whether the appeal is worth pursuing in the first place.’ ” Jyles, 96-2669 at 3, 704 So.2d at 242, quoting State v. Mouton, 95-0981, p. 2 (La.4/28/95), 653 So.2d 1176, 1177 (per cu-riam). A brief which simply states that there are no non-frivolous issues, without some discussion, and which only requests a review for errors patent, is ordinarily disallowed. State v. Singleton, 03-1307, p. 4 (La.App. 5 Cir. 3/30/04), 871 So.2d 596, 598. While counsel’s compliance with the requirements of Anders was minimal, we grant the motion to withdraw and affirm the defendant’s convictions and sentences, since there are no non-frivolous issues for appeal. Accord: State v. Cole, 04-615, pp. 10-11 (La.App. 5 Cir. 3/1/05), 900 So.2d 15, 22-23 (This court found that appellate counsel only minimally complied with the requirements of Anders, but nevertheless granted her motion to withdraw, since there were no non-frivolous issues for appeal.).

\ «ERROR PATENT

The record was reviewed for errors patent, according to La.C.Cr.P. art. 920(2). See also State v. Oliveaux, 312 So.2d 337 (La.1975); State v. Weiland, 556 So.2d 175 (La.App. 5 Cir.1990). We discern the following errors patent.

First we note that there are two discrepancies between the transcript and the commitments/minute entries; namely, the entries do not accurately reflect the sentences that were imposed.

The record contains two commitments/minute entries for the date of sentencing. The first commitment/minute entry reflects that the trial judge imposed concurrent original sentences of eight years on both counts. The transcript, however, shows otherwise. The transcript governs. State v. Lynch, 441 So.2d 732, 734 (La.1983). The trial judge only imposed an original sentence on Count 1, sexual battery.

The second commitment/minute entry incorrectly states that the trial judge vacated the original sentence on Count 2 before imposing the enhanced sentence. Rather than imposing an original sentence on Count 2, the trial judge simply imposed the enhanced habitual offender 20-year sentence. See: La. R.S. 15:529.1(D)(1)(3) (directing that sentence be vacated if previously imposed). Also, the entry incorrectly states that the trial judge imposed a parole restriction.

Thus, we remand this matter to the trial court and instruct the district court to correct the first entry to strike the portion reflecting that the trial judge imposed an original sentence on Count 2. We instruct the district court to correct the second entry to strike the portions denying parole eligibility and vacating the original sentence on Count 2. We direct the clerk of court to transmit the originals of the corrected commitments/minute entries to the officer in charge of the institution to hnwhich the defendant has been sentenced. See: La.C.Cr.P. art. 892(B)(2); State ex rel. Roland v. State, 06-0244 (La.9/15/06), 937 So.2d 846 (per curiam).

Second, we note that the trial judge orally advised the defendant of some sex offender registration requirements but he failed to provide the statutorily-required written notification form provided in La. R.S. 15:543.1.

La. R.S. 15:542 outlines mandatory registration requirements for those categorized as sex offenders under La. R.S. 15:541(24) and child predators. Additionally, La. R.S. 15:542.1 sets out notification requirements for those offenders categorized as sex offenders and child predators. La. R.S. 15:543(A) requires the trial court to provide written notice to all sex offenders and child predators of the registration and notification requirements, using the form contained in La. R.S. 15:543.1.

This case is complicated by legislative amendments to La. R.S. 15:543.1. The statute was amended to provide the form to be used by the courts by 2007 La. Acts, No. 460, § 2, effective January 1, 2008.2007 La. Acts 460, § 6 provides:

The provisions of this Act shall apply to all persons convicted of a sex offense or a criminal offense against a victim who is a minor, as defined in R.S. 15:541, regardless of the date of conviction, with the exception of those persons required to register under previous provisions of law whose obligations to register have been fulfilled and extinguished by operation of law. Any person under an obligation to register as of the effective date of this Act shall comply with the requirements contained in this Act and shall be given credit for having fulfilled them obligations to register for the length of time equal to their previous registration in compliance with law.

Thus, since the act applies to all such designated persons regardless of the date of conviction, the Court was required to use the statutorily-required form.

We also note that in 2008, the legislature made several amendments to La. R.S. 15:543.1 to reflect changes in the underlying registration requirements. 2008 |nLa. Acts 816, § 1. Additionally, in 2009, the legislature again amended Article 543.1, stating that the amendments were curative and remedial and should be applied retroactively as well as prospectively. 2009 La. Acts 205, § 3, effective August 15, 2009. The 2008 amendments unlike those in 2007 and 2009 did not mention whether they were to be applied retroactively. However, among the 2009 amendments to the form was the additional language stating that the defendant is subject to any changes in the law from the day of the written notice until forward.

In 2008, the defendant’s certification portion read:

I hereby certify that I have received a copy of the above notice of sex offender registration and notification requirements and a copy of the statutes providing for such requirements.
Effective August 15, 2009, the certification provision now provides

(emphasis added):

I hereby certify that the above requirements have been explained to me, that I have received a copy of the above notice of sex offender registration and notification requirements, and a copy of the statutes providing for such requirements. I also understand that I will be subject to any changes made by the legislature to the registration laws from this day forward.

Thus, we hold that the latest amendment to La. R.S. 15:543.1 applies to the defendant. Therefore, the trial court’s written notification should reflect the law currently in effect. See: State ex rel. Oli-vieri v. State, 00-0172, pp. 1-2 (La.2/21/01), 779 So.2d 735, 736-37, cert. denied, 533 U.S. 936, 121 S.Ct. 2566, 150 L.Ed.2d 730 (2001) (Retroactive application of law requiring registration of sex offenders and public notification did not violate state and federal ex post facto clauses.).

As a result, remand is required for the purpose of providing the appropriate written notice to the defendant of the sex offender registration requirements. State v. Patterson, 05-560, pp. 17-19 (La.App. 5 Cir. 1/31/06), 922 So.2d 1195, 1205-1207 writ denied, 06-1191 (La.3/16/07), 952 So.2d 687. This case is remanded and the trial judge is directed to advise the defendant of the sex offender registration requirements under the current provisions of La. R.S. 15:543.1 within ten days after rendition of this opinion and to file written proof in the record that the defendant received such notice.

CONCLUSION AND DECREE

For the foregoing reasons, appellate counsel’s Motion to Withdraw is granted, and the defendant’s convictions and sentences are affirmed. This matter is remanded to the trial court with instructions as more fully discussed in this opinion.

MOTION TO WITHDRAW GRANTED; CONVICTIONS AND SENTENCE S AFFIRMED; REMANDED WITH INSTRUCTIONS.

      . The trial court failed to impose restrictions on the sentence for Count 1. La. R.S. 14:43.1(C) requires that restrictions be imposed on die sentence. But La. R.S. 15:301.1 makes the restrictions self-operating. No corrective action is required.

      . The procedure set forth in Benjamin for compliance with Anders was sanctioned by the Louisiana Supreme Court in State v. Mon-ton, 95-0981, pp. 1-2 (La.4/28/95), 653 So.2d 1176, 1177 (per curiam), and adopted by this Court in State v. Bradford, 95-929, pp. 3-4 (La.App. 5 Cir. 6/25/96), 676 So.2d 1108, 1110.

      . The United Slates Supreme Court most recently reaffirmed its position in Anders in Smith v. Robbins, 528 U.S. 259, 120 S.Ct. 746, 145 L.Ed.2d 756 (2000).

      . The defendant waived his outstanding motions by entering a guilty plea without complaining that the district court had neither heard nor ruled on them. See State v. Corzo, 04-791, p. 2 (La.App. 5 Cir. 2/15/05), 896 So.2d 1101, 1102.

      . La. R.S. 15:529.1 D(l)(a) requires that the defendant be advised of the specific allegations contained in the habitual offender bill of information and his right to a formal hearing at which the State must prove its case. Implicit in this requirement is the additional requirement that the defendant be advised of his constitutional right to remain silent. State v. Johnson, 432 So.2d 815, 817 (La. 1983); State v. Bell, 03-217, p. 4 (La.App. 5 Cir. 5/28/03), 848 So.2d 87, 90.

      . Under the current version of La. R.S. 14:43.1(C)(2), the sentencing range for sexual battery on a victim under the age of 13 where the offender is 17 years of age or older is punishable by imprisonment at hard labor for not less than 25 years nor more than 29 years. At least 25 years of the sentence must be served without benefit of parole, probation, or suspension of sentence. The current version of La. R.S. 14:78.1(D)(2) provides that an offender age 17 or older who commits aggravated incest on a victim under age 13 is subject to a sentence of 25 to 99 years at hard labor, at least the first 25 years of which must be served without benefit of parole, probation, or suspension of sentence. For a second felony offender under the aggravated incest statute, the current sentencing range is 49.5 to 198 years without benefit of probation or suspension of sentence for the entire term, and without benefit of parole for at least the first 25 years. La. R.S. 14:78.1(D); La. R.S. 15:529.1(A)(1)(a); La. R.S. 15:529.1(G).

      . Appellate Record, p. 29.

      . Appellate Record, p. 31.

      .Both sexual batteiy (La. R.S. 14:43.1) and aggravated incest (La. R.S. 14:78.1) are classified as a "sex offenses’’ under La. R.S. 15:541(24).