STATE v. HARVEY (2026)

During a traffic stop on February 27, 2023, the defendant, Dakota Harvey, was arrested when the officers searched his vehicle and found a loaded firearm near the center console. The state filed a bill of information charging the defendant with possession of a firearm by a convicted felon, in violation of La.R.S. 14:95.1, on March 23, 2023. On March 19, 2025, the state amended the bill of information to correct the date of the predicate offense. Trial began on March 17, 2025. On March 19, 2025, the jury returned a unanimous verdict of guilty. On April 16, 2025, the trial court sentenced the defendant to a seventeen-year sentence at hard labor without benefit of probation, parole, or suspension of sentence, as well as a $1,000.00 fine. On May 2, 2025, the defendant gave notice of his intent to file an appeal, and his appeal was lodged with this court on January 23, 2026. In his brief to this court, the defendant asserts two assignments of errors.

The first assignment concerns whether the state presented sufficient evidence to support the defendant's conviction. As for the second, the defendant claims the trial court erred in imposing the mandatory minimum fine without first holding a hearing to determine whether the fine would cause the defendant or his dependents substantial financial hardship.

ASSIGNMENTS OF ERROR

In his brief to this court, the defendant asserts two assignments of error:

1. Where the evidence at trial showed that Appellant was a permitted possessor of a vehicle in which a hidden firearm was found, which weapon was the property of the owner of the vehicle, the evidence failed to exclude every reasonable hypothesis of innocence such that the evidence was insufficient to support the verdict.

2. The trial court erred in not conducting a hearing pursuant to La. Code Crim. P. art. 875.1 to determine if the imposition of the minimum mandatory fine would be a substantial hardship to Dakota Harvey.

ERRORS PATENT

In accordance with La.Code Crim.P. art. 920, all appeals are reviewed by this court for errors patent on the face of the record. After reviewing the record, we find there is one possible error patent that is raised as an assignment of error and will be addressed as such. Additionally, the minutes of sentencing require correction.

The sentencing transcript indicates the trial court imposed a $1,000.00 fine, but this is not reflected in the minutes of sentencing. “[W]hen the minutes and the transcript conflict, the transcript prevails.” State v. Wommack, 00-137, p. 4 (La.App. 3 Cir. 6/7/00), 770 So.2d 365, 369, writ denied, 00-2051 (La. 9/21/01), 797 So.2d 62. Accordingly, the trial court is ordered to correct the minutes of sentencing to accurately reflect the imposition of the $1,000.00 fine.

ASSIGNMENT OF ERROR NUMBER ONE

The defendant claims the evidence was insufficient to prove he constructively possessed the concealed firearm that was discovered in the vehicle he was driving but did not own. The defendant says the evidence did not exclude every reasonable hypothesis of innocence.

Relevant Law

The analysis for insufficient evidence claims is well settled:

When the issue of sufficiency of evidence is raised on appeal, the critical inquiry of the reviewing court is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560, rehearing denied, 444 U.S. 890, 100 S.Ct. 195, 62 L.Ed.2d 126 (1979), State ex rel. Graffagnino v. King, 436 So.2d 559 (La.1983); State v. Duncan, 420 So.2d 1105 (La.1982); State v. Moody, 393 So.2d 1212 (La.1981). It is the role of the fact finder to weigh the respective credibility of the witnesses, and therefore, the appellate court should not second guess the credibility determinations of the triers of fact beyond the sufficiency evaluations under the Jackson standard of review. See State ex rel. Graffagnino, 436 So.2d 559 (citing State v. Richardson, 425 So.2d 1228 (La.1983)). In order for this Court to affirm a conviction, however, the record must reflect that the state has satisfied its burden of proving the elements of the crime beyond a reasonable doubt.

State v. Kennerson, 96-1518, p. 5 (La.App. 3 Cir. 5/7/97), 695 So.2d 1367, 1371.

Regarding appellate review in cases relying on circumstantial evidence, this court has stated the following:

When the conviction is based upon circumstantial evidence, La.R.S. 15:438 provides that the state “must exclude every reasonable hypothesis of innocence” in order to convict. State v. Camp, 446 So.2d 1207, 1209 (La.1984). “Circumstantial evidence consists of proof of collateral facts and circumstances from which elemental factors may be inferred according to reason, experience and common sense.” State v. Burns, 441 So.2d 843, 845 (La.App. 3 Cir.1983). However, La.R.S. 15:438 does not establish a stricter standard of review on appeal than the rational juror's reasonable doubt standard. The statute serves as a guide for the jury when considering circumstantial evidence. On appeal, the issue is whether a rational trier of fact, when viewing the evidence in a light most favorable to the prosecution, could find that all reasonable hypotheses of innocence were excluded. State v. Williams, 13-497 (La.App. 3 Cir. 11/6/13), 124 So.3d 1236, writ denied, 13-2774 (La. 5/16/14), 139 So.3d 1024.

State v. Baumberger, 15-1056, pp. 10-11 (La.App. 3 Cir. 6/1/16), 200 So.3d 817, 826–27, writ denied, 16-1251 (La. 5/26/17), 221 So.3d 859, cert. denied, 583 U.S. 950, 138 S.Ct. 392 (2017). Additionally, the testimony of a single witness, if believed, and absent internal contradictions or irreconcilable conflicts with physical evidence, is sufficient to support a conviction. State v. Pierre, 14-1071 (La.App. 3 Cir. 5/6/15), 170 So.3d 348, writ denied, 15-1151 (La. 5/13/16), 191 So.3d 1054.

The defendant was convicted of possession of a firearm by a convicted felon, which is a violation of La.R.S. 14:95.1. In State v. Bonier, 22-434, pp. 4–6 (La.App. 3 Cir. 3/1/23), 358 So.3d 966, 970–72, this court explained what must be established to convict on this charge, stating:

[F]or the defendant to be convicted of possession of a firearm by a convicted felon: “[T]he State must prove beyond a reasonable doubt: (1) the possession of a firearm; (2) a previous conviction of an enumerated felony; (3) absence of the ten-year statutory period of limitation; and, (4) general intent to commit the offense.” State v. Recard, 97-754, p. 9 (La.App. 3 Cir. 11/26/97), 704 So.2d 324, 329, writ denied, 97-3187 (La. 5/1/98), 805 So.2d 200.

State v. Johnson, 09-862, p. 3 (La.App. 3 Cir. 2/3/10), 28 So.3d 1263, 1267.

This court has determined that actual possession of a firearm is not necessary to satisfy the possession element; constructive possession is sufficient. See State v. Edwards, 12-891, (La.App. 3 Cir. 2/6/13), 107 So.3d 883. Constructive possession occurs when “a thing [is] subject to [the defendant's] dominion and control.” Id. at 888 (quoting State v. Lee, 02-704, p. 5 (La.App. 5 Cir. 12/30/02), 836 So.2d 589, 593, writ denied, 03-535 (La. 10/17/03), 855 So.2d 755 (footnotes omitted)). Even when dominion over a weapon is temporary or control is shared, constructive possession of the weapon can still be found if evidence supports “the offender was aware that a firearm was in his presence, and that he had the general criminal intent to possess the weapon.” Id.

“Guilty knowledge is an essential element in proving constructive possession [of a firearm] and may be inferred from the circumstances.” State v. Fobb, 11-1434, p. 12 (La.App. 3 Cir. 6/6/12), 91 So.3d 1235, 1244 (quoting State v. Brooks, 99-478, pp. 4-6 (La.App. 3 Cir. 12/8/99), 756 So.2d 336, 339, writ denied, 00-1492 (La. 5/25/01), 792 So.2d 750). “ ‘Constructive possession entails an element of awareness or knowledge that the firearm is there and the general intent to possess it.’ ” Fobb, 91 So.3d at 1244 (quoting State v. McKinney, 44,269, p. 7 (La.App. 2 Cir. 5/13/09), 12 So.3d 422, 426). “ ‘[M]ere presence of a defendant in the area of the contraband or other evidence seized alone does not prove that he exercised dominion and control over the evidence and therefore had it in his constructive possession.’ ” State v. Johnson, 03-1228, p. 6 (La. 4/14/04), 870 So.2d 995, 998-1000 (quoting State v. Walker, 369 So.2d 1345, 1346 (La.1979)).

The supreme court has broadly interpreted constructive possession. In Johnson, a handgun was found on the floorboard of a vehicle where Johnson's feet had been before he was removed from the car. Testimony revealed that no one saw Johnson with the gun and the vehicle did not belong to Johnson. Additionally, another occupant of the vehicle claimed ownership of the gun and testified that she attempted to hide the gun before exiting the vehicle. The supreme court reversed the appellate court's decision to overturn Johnson's conviction for possession of a firearm by a convicted felon, stating:

The evidence presented by the State was sufficient to prove that the defendant was in fact in possession of the weapon and that this possession was enough to sustain a conviction on the charge of a felon in possession of a firearm, La. R.S. 14:95.1․ In this matter, the jury made a credibility determination and found [two witnesses’] accounts unconvincing. Consequently, it was inappropriate for the court of appeal to impinge on the fact finder's discretion to rely instead on the testimony of [a third witness] absent a showing that the defendant was not granted the fundamental due process of law.

Johnson, 870 So.2d at 998-1000 (citations omitted) (emphasis in original). General intent “is a fact question which ‘may be inferred from the circumstances of a transaction.’ ” Edwards, 107 So.3d at 888 (quoting State v. Johnson, 09-862, (La.App. 3 Cir. 2/3/10), 28 So.3d 1263, 1267).

State v. OBrien, 17-922, pp. 12–13 (La.App. 3 Cir. 4/4/18), 242 So.3d 1254, 1264-65 (alterations in original), writ denied, 18-663 (La. 2/18/19), 265 So.3d 769.

Evidence and Testimony

On February 27, 2023, Deputy Ben Keyser was on patrol in the city limits of Campti, Louisiana. On the road, he saw a black Tahoe with dark window tint. Its driver and sole occupant was the defendant. Suspecting the tint on the vehicle was illegal, Deputy Keyser braked to initiate a traffic stop. He was about to turn on his emergency lights when the defendant quickly turned into a driveway and parked. To Deputy Keyser, the defendant was trying to avoid him. Deputy Keyser drove past the driveway and up the road, which led up a large hill. At the top of the hill, he turned off all of his lights, waited, and watched as the defendant's vehicle idled in the driveway. For those few minutes, the defendant remained in his vehicle. He then pulled back onto the road and drove towards Deputy Keyser. Deputy Keyser let the defendant travel a few hundred feet before turning on his emergency lights. He initiated a “nose to nose” traffic stop.

Deputy Keyser testified that when he got out of his vehicle, the defendant exited the vehicle he was driving, but after Deputy Keyser told him to return to the vehicle, the defendant complied. Deputy Keyser then called for assistance, and Deputy Sloan Dieter made his way to the traffic stop. As Deputy Keyser walked up to the driver's side of the defendant's vehicle, he asked the defendant for his insurance and registration. He testified the driver's seat had been leaned back excessively, and he saw, in plain view on the passenger seat, a box of pistol ammunition. Deputy Keyser testified that he checked inside the vehicle as he went to get its registration and insurance. Deputy Keyser handed Deputy Dieter the license the defendant gave him, and Deputy Dieter ran a status check. The deputies learned that the license was suspended and that the defendant had active arrest warrants. They then patted down the defendant, handcuffed him, and verified that the warrants were active. Upon confirmation, the defendant was arrested and put in Deputy Keyser's unit. Afterwards, Deputy Keyser called his sergeant and learned that the defendant had a prior felony which prevented him from possessing a firearm. The deputies then searched the defendant's vehicle.

In the vehicle's “back hatch,” there was a cane, tools, and laundry. In one seat, there was a vehicle diagnostic tool. Between the two back “bucket seats,” the deputies found a pistol holster. In the vehicle's center console between the front passenger and driver's seats, Deputy Dieter found a “manipulated hole.” Deputy Keyser testified that because of how far back the seat was leaning, a person sitting in the driver's seat could reach into that area of the console. When Deputy Keyser examined the hole, he saw a piece of paper which was partially covering up the extended magazine and grip of a firearm. The firearm was a 9mm Tauras/Luger loaded with 9mm hollow point bullets. Since it was ready to fire at any time, Deputy Keyser took out the gun's magazine and collected a live round from its chamber. He testified the bullets in the firearm matched those from the box on the front seat. The box was supposed to contain twenty cartridges, but four were missing, and on the cartridges, there were inscriptions saying “JAG 9mm Luger.” Deputy Keyser brought the firearm to his unit and put it in the front. He testified that before he showed or told the defendant that he had found the firearm, the defendant uttered, “That ain't my gun.” The defendant said he was borrowing the vehicle to go down the hill and back; he was working on fixing the vehicle. The firearm was not reported stolen. No DNA or fingerprinting of the firearm was ever requested. Also, the vehicle was not registered to the defendant but to a woman named Samantha LaCour.

Adam Levy was the General Manager of Premium Pawn. Mr. Levy testified he sold a box of ammunition to the defendant on February 24, 2023. The defendant used his ID to purchase the ammunition. This sale occurred three days before the defendant was stopped by Deputy Keyser. A receipt for the transaction was entered into evidence, and it showed that the defendant bought two boxes of 9mm hollow point ammunition manufactured by Ammo Incorporated. According to Mr. Levy, the product's item number was 7089, while the model number from the manufacturer was 9115. Each box held twenty cartridges. The state asked Mr. Levy to compare the ammunition box which was in the vehicle the defendant was driving to the bullets which were loaded in the seized pistol. Mr. Levy testified the box matched the boxes shown on the receipt, and the bullets matched the bullets contained in those boxes.

Other relevant testimony included Deputy Susan Mobley who performed a firearm trace on the 9mm pistol. She testified Samantha LaCour was listed as the weapon's owner. Agent Ronald Lodrigue, from State Probation and Parole, testified he supervised the defendant in May 2020. As the defendant's case manager, Agent Lodrigue was custodian of the defendant's probation and parole records. He said the defendant was arrested for the offense of aggravated battery on September 4, 2012, and in January 2013, he pled guilty to the offense. Though the defendant was sentenced to seven years at hard labor, his sentence was suspended, and the defendant was put on probation for five years. Agent Lodrigue testified that one condition of the defendant's probation was that he could not possess any firearm or dangerous weapon. In July 2016, the defendant's probation was revoked. Thereafter, he was incarcerated. On May 27, 2020, the defendant was released, and he completed his supervision on April 12, 2022. Lastly, Major Jesse Taitano testified about two phone calls which the defendant made from the detention center. These calls occurred on February 28 and March 1 of 2023. While the defendant was identified on the call by the pin number he used to access the prison's phone system, the identity of whom he was speaking to was not established at trial. Nevertheless, Major Taitano listened to these calls, and parts of the recordings were played during the defendant's trial. Major Taitano testified he heard the defendant say he was not worried about the gun because the gun belonged to Ms. LaCour, and to Major Taitano, this meant the defendant was aware the weapon was in the vehicle.

Defendant and the State's Arguments

In his brief to this court, the defendant acknowledges he was the sole occupant of the vehicle but notes the firearm was not in plain sight. As Deputy Keyser testified, it was in a “manipulated hole” which was covered by a piece of paper. The defendant recalls that when Deputy Keyser placed the firearm in his unit where the defendant was being detained, the defendant said the weapon was not his. The defendant notes the jail call recording of him saying that the gun belonged to the vehicle owner, Samantha LaCour. The defendant says no evidence established the type of relationship the defendant and Samantha LaCour shared. He notes the bodycam video that was admitted into evidence showed him saying he borrowed her car to go down the hill and back. Also, the defendant claims he worked on automobiles and that the vehicle contained a vehicle diagnostic device. Additionally, the defendant says the firearm was never reported stolen, and while he acknowledges the receipt showing he bought ammunition days before the traffic stop, but he submits the receipt alone was insufficient to prove he possessed or used the firearm.

The state notes the firearm was concealed in the center console and was thus near the defendant. Moreover, not only did the defendant know the firearm was in the vehicle, but he had also bought the ammunition that was found in the passenger seat, and this ammunition was the same type that was loaded in the firearm. For these reasons, the state argues the jury had sufficient evidence to find the defendant guilty of possessing the firearm.

Analysis

In State v. Frank, 549 So.2d 401 (La.App. 3 Cir. 1989), a gun was in plain view on the front seat of the car the defendant was driving but did not own, and this was sufficient to constitute constructive possession. Likewise, in State v. Green, 54,267 (La.App. 2 Cir. 3/9/22), 334 So.3d 1107, constructive possession was found where the defendant was the driver of the vehicle and the gun was easily visible and near him.

In State v. Dotie, 43,819 (La.App. 2 Cir. 1/14/09), 1 So.3d 833, writ denied, 09-310 (La. 11/6/09), 21 So.3d 297, a firearm was found in the closed front seat center console of the vehicle the defendant was driving. The car belonged to the mother of the defendant's child. However, at trial, the defendant's mother testified she borrowed the car the day before, put the gun in the console, and forgot to remove it. No fingerprints were recovered from the weapon, and the defendant was not observed touching the console. The appellate court nevertheless rejected the defendant's argument that his mere presence in the vehicle did not constitute constructive possession and affirmed the defendant's conviction for possession of a firearm by a convicted felon. The court noted the defendant was evasive when stopped, and he drove the vehicle most of the time.

In State v. St. Cyre, 19-34 (La.App. 1 Cir. 12/19/19), 292 So.3d 88, writ denied, 20-142 (La. 5/26/20), 296 So.3d 1063, the gun was found in a vehicle which belonged to the defendant's aunt. At the time, the defendant's wife was using the vehicle to bring the defendant to the probation and parole office. The defendant had an appointment because he was seeking permission to move to another state. There, the vehicle was searched after an agent smelled marijuana on the defendant. As the agent and his associates went to perform the search, the agent saw the defendant text his wife to get the gun. Once the defendant's wife met the agents, she told the agents the gun was underneath the driver's seat. The defendant explained his aunt had purchased the gun and gave it to him for protection because he feared for his life. Also, the defendant's wife testified that the defendant was unaware the gun was in the car. She said she did not tell the defendant about the firearm until shortly before they went to the probation and parole office a second time that day. The appellate court found the defendant constructively possessed the gun.

Here, we find the jury had sufficient evidence to find the defendant possessed the concealed firearm. He was the sole occupant of the vehicle. A receipt showed that he bought two boxes of ammunition matching the caliber of the firearm three days before the traffic stop. Though the gun was concealed, a box of that ammunition was in plain view on the passenger seat, and the bullets loaded in the firearm matched those in the box. The firearm was also near the center console in what the officer described as a “manipulated hole,” and the defendant had his seat reclined to an extent which allowed him to access the area. Additionally, the defendant appeared to evade Deputy Keyser when he pulled into a driveway, waited a few minutes, and drove off again. Again, Deputy Keyser testified the defendant, shortly after he was stopped, exited the vehicle he was driving. Also, he testified that before revealing to the defendant that he had found the gun, the defendant said the gun was not his. The phone calls also showed the defendant knew the gun was not stolen, and he knew it was registered to the owner of the vehicle he was driving. When all this evidence is viewed in a light most favorable to the prosecution, the jury had enough evidence to exclude every reasonable hypothesis of the defendant's innocence and to conclude the defendant was aware of the firearm and knowingly had it under his dominion and control.

For these reasons, the defendant's conviction is affirmed.

ASSIGNMENT OF ERROR NUMBER TWO

In addition to a sentence of seventeen years at hard labor, the trial court imposed a $1,000.00 fine. According to La.R.S. 14:95.1(B)(1), possession of a firearm by a convicted felon is punishable by imprisonment at hard labor and a fine of “not less than one thousand dollars nor more than five thousand dollars.” Thus, the defendant received the lowest possible mandatory fine. In his second assignment of error, the defendant contends the trial court erred in imposing the fine. The trial court, he says, was required to first conduct a hearing to determine whether the fine would cause the defendant or his dependents substantial financial hardship. By failing to make this determination, the trial court failed to adhere to La.Code Crim.P. art. 875.1. Thus, the defendant asks this court to vacate the $1000.00 fine and remand the matter with instructions to the trial court to hold a hearing to determine his financial capability.

The state acknowledges the trial court did not hold a separate hearing to make a judicial determination as to a substantial financial hardship. However, the state submits Article 875.1 does not require a hearing separate from the sentencing hearing. The state says the defendant had an opportunity at the sentencing hearing to offer evidence of his indigency but chose not to, thereby, waiving his right to a judicial determination of his ability to pay the fine.

Analysis

First, we note that when the trial court imposed the fine, the defendant made only a general objection. However, as stated in State v. Tucker, 22-735 (La.App. 3 Cir. 5/31/23), 368 So.3d 187, no objection needs to be made to preserve the claim.

At the time of the defendant's traffic stop, which occurred on February 27, 2023, La.Code Crim.P. 875.1 (emphasis added) provided:

A. The purpose of imposing financial obligations on an offender who is convicted of a criminal offense is to hold the offender accountable for his action, to compensate victims for any actual pecuniary loss or costs incurred in connection with a criminal prosecution, to defray the cost of court operations, and to provide services to offenders and victims. These financial obligations should not create a barrier to the offender's successful rehabilitation and reentry into society. Financial obligations in excess of what an offender can reasonably pay undermine the primary purpose of the justice system which is to deter criminal behavior and encourage compliance with the law. Financial obligations that cause undue hardship on the offender should be waived, modified, or forgiven. Creating a payment plan for the offender that is based upon the ability to pay, results in financial obligations that the offender is able to comply with and often results in more money collected. Offenders who are consistent in their payments and in good faith try to fulfill their financial obligations should be rewarded for their efforts.

B. For purposes of this Article, “financial obligations” shall include any fine, fee, cost, restitution, or other monetary obligation authorized by this Code or by the Louisiana Revised Statutes of 1950 and imposed upon the defendant as part of a criminal sentence, incarceration, or as a condition of the defendant's release on probation or parole.

C. (1) Notwithstanding any provision of law to the contrary, prior to ordering the imposition or enforcement of any financial obligations as defined by this Article, the court shall conduct a hearing to determine whether payment in full of the aggregate amount of all the financial obligations to be imposed upon the defendant would cause substantial financial hardship to the defendant or his dependents. The court may consider, among other factors, whether any victim of the crime has incurred a substantial financial hardship as a result of the criminal act or acts and whether the defendant is employed. The court may delay the hearing to determine substantial financial hardship for a period not to exceed ninety days, in order to permit either party to submit relevant evidence.

(2) The defendant or the court may waive the judicial determination of a substantial financial hardship required by the provisions of this Paragraph. If the court waives the hearing on its own motion, the court shall provide reasons, entered upon the record, for its determination that the defendant is capable of paying the fines, fees, and penalties imposed without causing a substantial financial hardship.

D. (1) If the court determines that payment in full of the aggregate amount of all financial obligations imposed upon the defendant would cause substantial financial hardship to the defendant or his dependents, the court shall do either of the following:

(a) Waive all or any portion of the financial obligations, except as provided in Paragraph E of this Article.

(b) Order a payment plan that requires the defendant to make a monthly payment to fulfill the financial obligations.

(2)(a) The amount of each monthly payment for the payment plan ordered pursuant to the provisions of Subsubparagraph (1)(b) of this Paragraph shall be determined by the court after considering all relevant factors, including but not limited to the defendant's average gross daily income for an eight-hour work day.

(b) If the court has ordered restitution, half of the defendant's monthly payment shall be distributed toward the defendant's restitution obligation.

(c) Except as provided in Paragraph E of this Article, during any periods of unemployment, homelessness, or other circumstances in which the defendant is unable to make the monthly payment, the court or the defendant's probation and parole officer is authorized to impose a payment alternative, including but not limited to substance abuse treatment, education, job training, or community service.

(3) If, after the initial determination of the defendant's ability to fulfill his financial obligations, the defendant's circumstances and ability to pay his financial obligations change, the state, the defendant, or the defendant's attorney may file a motion with the court to reevaluate the defendant's circumstances and determine, in the same manner as the initial determination, whether a modification of the monthly financial obligation imposed pursuant to this Article is appropriate under the circumstances.

E. Notwithstanding any other provision of this Article or any other provision of law to the contrary, a court may not waive nor forgive restitution due to a crime victim unless the victim to whom restitution is due consents to such an action.

F. If, at the termination or end of the defendant's term of supervision, any restitution ordered by the court remains outstanding, the balance of the unpaid restitution shall be reduced to a civil money judgment in favor of the person to whom restitution is owed, which may be enforced in the same manner as provided for the execution of judgments in the Code of Civil Procedure. For any civil money judgment ordered under this Article, the clerk shall send notice of the judgment to the last known address of the person to whom the restitution is ordered to be paid.

G. The provisions of this Article shall apply only to defendants convicted of offenses classified as felonies under applicable law.

H. Notwithstanding any provision of this Article or any other law to the contrary, if the financial obligations imposed upon a defendant would cause substantial financial hardship to the defendant or his dependents, the court shall not order that the defendant be incarcerated for his inability to meet those financial obligations. This provision shall apply to defendants convicted of traffic offenses, misdemeanor offenses, or felonies under applicable law.

In Tucker, this court stated the following on a defendant's entitlement to a hearing pursuant La.Code Crim.P. art. 875.1:

This court must also discuss waiver of the determination [of financial hardship] provided for in La.Code Crim.P. art. 875.1. At the time [State v.] Jarratt[, 53,525 (La.App. 2 Cir. 6/24/20), 299 So.3d 1202,] and [State v.] Smith[, 53,827 (La.App. 2 Cir. 3/3/21), 315 So.3d 407,] were decided, the judicial determination of financial hardship could not be waived. As of August 1, 2022, the determination may now be waived by a defendant or the trial court. A waiver by the trial court must be made on the record. The article does not declare that a defendant's waiver must be made of record. However, we believe that to allow an implied waiver by a defendant would be contrary to the stated purpose of the article. We find guidance in Bearden v. Georgia, 461 U.S. 660, 672–73, 103 S.Ct. 2064, 2073, 76 L.Ed.2d 221 (1983) (emphasis added), in which the Supreme Court placed the burden on the court to inquire as to a defendant's failure to pay restitution:

We hold, therefore, that in revocation proceedings for failure to pay a fine or restitution, a sentencing court must inquire into the reasons for the failure to pay. If the probationer willfully refused to pay or failed to make sufficient bona fide efforts legally to acquire the resources to pay, the court may revoke probation and sentence the defendant to imprisonment within the authorized range of its sentencing authority. If the probationer could not pay despite sufficient bona fide efforts to acquire the resources to do so, the court must consider alternate measures of punishment other than imprisonment. Only if alternate measures are not adequate to meet the State's interests in punishment and deterrence may the court imprison a probationer who has made sufficient bona fide efforts to pay. To do otherwise would deprive the probationer of his conditional freedom simply because, through no fault of his own, he cannot pay the fine. Such a deprivation would be contrary to the fundamental fairness required by the Fourteenth Amendment.

Furthermore, courts have not put the onus on a defendant to raise his indigency when default time has been imposed pursuant to La.Code Crim.P. art. 884, which requires the trial court to impose a specific term of imprisonment when it imposes a fine or costs that are not paid. The issue has been considered an error patent:

The record indicates that Defendant is indigent. During the pre-plea, guilty plea, and sentencing proceedings, he was represented by a court-appointed attorney; and, on appeal, he is represented by the Louisiana Appellate Project. This court finds these facts are presumptive evidence of indigence. See State v. Jones, 535 So.2d 3 (La.App. 4 Cir.1988). Although we are amending the sentence to delete the fine and payment to the Public Defender's Office, the order to pay $150.00 costs for the crime lab (presumably court costs) still remains. Therefore, we likewise delete the portion of the sentence providing for a jail term in the event of default of payment of costs. The trial court is instructed to note the amendment in its court minutes.

State v. Belton, 11-948, pp. 4-5 (La.App. 3 Cir. 3/7/12), 88 So.3d 1159, 1162. See also State v. Duke, 11-688 (La.App. 3 Cir. 2/1/12), 84 So.3d 722, writ denied, 12-373 (La. 9/21/12), 98 So.3d 324; State v. Jackson, 53,497 (La.App. 2 Cir. 5/20/20), 296 So.3d 1156; State v. George, 94-2215 (La.App. 4 Cir. 4/26/95), 654 So.2d 813, writ denied, 95-1221 (La. 10/13/95), 661 So.2d 495.

For the reasons discussed, we find Defendant was entitled to a hearing pursuant to La.Code Crim.P. art. 875.1 prior to imposition of the fine.

Tucker, 368 So.3d at 201–02 (footnotes omitted).

Accordingly, we find the defendant is entitled to a hearing on whether the mandatory fine would cause him substantial financial hardship. The record does not show that the trial court made any such determination. The only thing of relevance the trial court noted was that the defendant had seven children to support. Moreover, to waive the need for this determination, it must be done explicitly. The defendant made no such waiver. The trial court also never stated on the record that it waived the need to determine the defendant's ability to pay the fine. Lastly, the defendant is presently represented by Louisiana Appeals and Writ Service of the Office of the State Public the defender, which suggests his indigency. Thus, the $1,000.00 fine is set aside and the matter remanded for the trial court to hold a hearing pursuant to La.Code Crim.P. art. 875.1 to determine whether the mandatory fine would cause the defendant or his dependents substantial financial hardship.

CONCLUSION

The defendant's conviction and seventeen-year sentence of imprisonment are affirmed. The $1,000.00 fine is set aside and the matter is remanded for the trial court to hold a hearing pursuant to La.Code Crim.P. art. 875.1. On remand, the trial court is ordered to correct the original minutes of sentencing to reflect the imposition of the $1,000.00 fine.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED WITH INSTRUCTIONS.

PICKETT, Chief Judge.