FREDERICKA HOMBERG WICKER, Judge.
This is Jean U. Boiteux, defendant/appellant's, second appeal. In his first appeal, Mr. Boiteux's conviction and five-year hard labor sentence for second degree battery, La.R.S. 14:34.1, were affirmed. State v. Boiteux, 10-1017 (La.App. 5 Cir. 8/30/11), 74 So.3d 731. Mr. Boiteux now appeals his enhanced nine-year hard labor sentence without benefit of probation or suspension of sentence. He assigns one error: The State failed to meet its burden of proving that the predicate felony used for enhancement fell within the 10-year "cleansing period." He argues that the State sought to prove this by inadmissible hearsay. For the reasons that follow, we affirm.
In the prior appeal, this Court found no merit to Mr. Boiteux's assignments challenging sufficiency of the evidence and excessiveness of his five-year sentence. Finding no merit to the assignment regarding sufficiency, we summarized the pertinent facts and found:
A few months after his conviction and original sentencing, the State filed a habitual offender bill of information alleging that Mr. Boiteux was a second felony offender based upon prior felony convictions in Florida for violations of aggravated assault with a deadly weapon,
A multiple bill hearing was held on February 3, 2011, at the conclusion of which the trial judge found Mr. Boiteux to be a second felony offender. Mr. Boiteux's original sentence was vacated, and he was re-sentenced to nine years imprisonment in accordance with the mandatory minimum sentence provided for by the Habitual Offender Statute.
At the habitual offender hearing, the State presented the testimony of Donna Quintanilla, a Latent Print Examiner for the Jefferson Parish Sheriffs Office, who was accepted as an expert by joint stipulation of the State and the defense. Ms. Quintanilla identified State's Exhibit 1 as the fingerprints she took from Mr. Boiteux in court that day.
The State further produced Exhibit 2, a certified copy of an Arrest Print Card created in conjunction with Mr. Boiteux's arrest for the instant conviction, second degree battery, which Ms. Quintanilla certified as a true reproduction. Ms. Quintanilla also examined State's Exhibit 3, a certified document that included fingerprints taken in connection with Mr. Boiteux's convictions in Florida. Ms. Quintanilla concluded that the fingerprints from all three exhibits were made by the "same person, same finger, to the exclusion of all others."
The State next called Salvador Sparacello, an Investigator for the Jefferson Parish District Attorney's Office. Mr. Sparacello testified that he was asked by the Jefferson Parish District Attorney's Office to contact the Miami Dade Clerk of Court to obtain Mr. Boiteux's release date resulting from a conviction and revocation in Florida. The Clerk of Court for Miami Dade through Diane Catavina told him that Mr. Boiteux was released on July 8, 1999. Ms. Catavina advised Mr. Sparacello to contact the Miami Dade Correctional Center seeking information on Mr. Boiteux's release. Mr. Sparacello then spoke with Deputy Betty Martin who informed him that Mr. Boiteux's release date was July 8, 1999. Ms. Martin also sent Mr. Sparacello a Miami Dade Correctional Center form by email listing that date as the latest release date. State's Exhibit 12, which was admitted into evidence without objection from defense counsel, contains the initial correspondence
After the hearing, the court found that the State met its burden of proving that Mr. Boiteux was a second felony offender.
The Habitual Offender Law provides that it is inapplicable where more than ten years have elapsed between the date of the commission of the current offense and the expiration of the maximum sentence of the previous conviction. La. R.S. 15:529.1(C). Mr. Boiteux contends in his sole assignment of error that the State failed to prove that less than ten years had elapsed from the time when he was convicted of the 1997 predicate felony and the commission of the subsequent offense. Specifically, he argues that nothing in the documents presented by the State prove that he received a release date from state supervision for his previous Florida convictions within the ten-year "cleansing period." Mr. Boiteux concludes that without proof of the actual date of discharge from state supervision, it was error for the trial court to find that he was a second felony offender.
Although Mr. Boiteux filed a written response to the habitual offender bill of information, he did not raise this objection in the response or during the habitual offender hearing. Ordinarily, the issue would not be properly preserved for appellate review. See: La.R.S. 15:529.1(D)(1)(b) (Any challenge to a previous conviction which is not made before sentence is imposed may not thereafter be raised to attack the sentence.). However, since the sufficiency of proof of the "cleansing period" bears on the defendant's due process rights, we review the issue on appeal as an error patent. State v. Mosley, 08-1319, p. 9 (La.App. 5 Cir. 5/26/09), 16 So.3d 398, 403. Therefore, we will address the issue.
The State bears the burden of proving that the predicate convictions fall within the "cleansing period" prescribed by La.R.S. 15:529.1(C). State v. Metoyer, 612 So.2d 755, 758 (La.App. 5 Cir.1992). See also State v. Hollins, 99-278, p. 21 (La.App. 5 Cir. 8/31/99), 742 So.2d 671, 685, writ denied, 99-2853 (La.1/5/01), 778 So.2d 587. This ten-year "cleansing period"
The certified Florida Court records show that on November 24, 1997, Mr. Boiteux entered a plea of nolo contendre and the trial court placed him on three-years' probation subject to certain conditions with early termination after two years. Thus, it cannot be determined on the face of the certified court record when Mr. Boiteux was released from the state's supervision. In this case, more than the ten-year "cleansing period" had elapsed between Mr. Boiteux's conviction on the 1997 predicate felonies and his commission of the subsequent offense. Thus, the State was required to prove that the underlying offense was committed within ten years of Mr. Boiteux's release from state custody for the predicate convictions in case 96-41470 in the Circuit Court of the Eleventh Judicial Circuit in and for Dade County, Florida.
The State argues that Mr. Sparacello's testimony established that he was provided both verbal and written confirmation by the Miami Dade Clerk of Court's Office regarding Mr. Boiteux's release of July 8, 1999, after his Florida convictions. The State further points out Mr. Sparacello's testimony that he spoke with Deputy Martin of the Miami Dade Correctional Center, who sent him an email with a PDF attachment containing information from the Criminal Justice System that indicated Mr. Boiteux was released from Florida custody on July 8, 1999.
At the habitual offender hearing, the State produced certified copies of the bill of information in case number 96-41470 (State's Exhibit 8), and a minute entry detailing Mr. Boiteux's plea of nolo contendre (State's Exhibit 3). Mr. Boiteux was given a sentence of three years of probation on November 24, 1997 (State's Exhibit 10). His probation was revoked on September 29, 1998, and he was sentenced to 364 days to be served in Dade County, Florida (State's Exhibits 10 and 11). State's Exhibit 12, which was admitted into evidence without objection, indicates that Florida's Justice Information System shows July 8, 1999, as the date that Mr. Boiteux was released from incarceration. The underlying offense was committed on December 19, 2008, which is clearly within the ten-year "cleansing period" prescribed by La. R.S. 15:529.1(C).
Mr. Boiteux contends that Mr. Sparacello's testimony about what he was told pertaining to Mr. Boiteux's release date by the Miami Dade Clerk of Court's office was hearsay. However, the record shows that the defense did not object to Mr. Sparacello's testimony or to Exhibit 12 introduced in conjunction with his testimony. Objections not made at the time of their occurrence are waived on appeal.
The uncontroverted evidence admitted at the habitual offender proceeding without objection, as well as testimony by the State's witness, established that Mr. Boiteux was discharged from Florida's custody on July 8, 1999. The underlying offense was committed on December 19, 2008, which is clearly within the ten-year cleansing period prescribed by La.R.S. 15:529.1(C). Accordingly, the trial court did not err in finding Mr. Boiteux to be a second felony offender.
This Court previously conducted an error patent review in Mr. Boiteux's first appeal and found one error that required proper notification of the prescriptive period for filing an application for post-conviction relief. State v. Boiteux, 10-1017, p. 6 (La.App. 5 Cir. 8/30/11), 74 So.3d 731. Mr. Boiteux is now only entitled to an error patent review of the habitual offender proceeding. See State v. Bolden, 04-1000, p. 6, n. 1 (La.App. 5 Cir. 3/1/05), 901 So.2d 445, 449, n. 1, writ denied, 05-2030 (La.4/28/06), 927 So.2d 279. Upon review we find no error patent requiring corrective action.
Accordingly, for the foregoing reasons, the habitual offender finding and sentence are affirmed.