State of Louisiana v. Darren Ross Cruz

• Court: Louisiana Court of Appeal
• Decided: February 3, 2016
• Docket: KA-0015-0755
• Status: Unknown

Opinion

STATE OF LOUISIANA

COURT OF APPEAL, THIRD CIRCUIT

15-755

VERSUS

DARREN ROSS CRUZ

************

APPEAL FROM THE FOURTEENTH JUDICIAL DISTRICT COURT PARISH OF CALCASIEU, DOCKET NO. 20862-VC-2012 HONORABLE G. MICHAEL CANADAY, DISTRICT JUDGE

JAMES T. GENOVESE JUDGE

Court composed of Sylvia R. Cooks, Jimmie C. Peters, and James T. Genovese, Judges.

SENTENCE VACATED; REMANDED FOR FURTHER PROCEEDINGS.

Chad Ikerd Louisiana Appellate Project Post Office Box 2125 Lafayette, Louisiana 70502 (225) 806-2930 COUNSEL FOR DEFENDANT/APPELLANT: Darren Ross Cruz John F. DeRosier District Attorney—Fourteenth Judicial District Karen C. McLellan Assistant District Attorney 901 Lakeshore Drive, Suite 800 Lake Charles, Louisiana 70601 (337) 437-3400 COUNSEL FOR APPELLEE: State of Louisiana GENOVESE, Judge.

In this criminal case, Defendant, Darren Ross Cruz, appeals his second

degree battery conviction, alleging trial court error in denying his motion for new

trial. Due to an existing error patent, we must vacate Defendant’s sentence and

remand the matter to the trial court for disposition of his motion for new trial and

for resentencing, if necessary.

FACTS AND PROCEDURAL HISTORY

On or about August 7, 2011, an altercation involving Defendant and Dustin

J. Landry occurred, wherein Mr. Landry sustained serious bodily injury.

Defendant was charged by grand jury indictment with the second degree battery of

Mr. Landry, a violation of La.R.S. 14:34.1. Subsequent thereto, Defendant was

convicted of the charged offense by a six-person jury.

Prior to sentencing, Defendant filed a motion for new trial. Crucial to this

appeal, the trial court never ruled on this motion. Defendant was sentenced to

serve thirty-six months at hard labor with thirty months suspended. He was

ordered to serve the six-month portion of his sentence with the Department of

Corrections, and he was to be placed on four years of unsupervised probation upon

his release. A restitution hearing was subsequently held, and $20,223.56 in

restitution was agreed upon and ordered to be paid by Defendant as a condition of

his probation.

ERRORS PATENT

In accordance with La.Code Crim.P. art. 920, we review all appeals for

errors patent on the face of the record. After reviewing the record, we find an error

patent which requires that Defendant’s sentence be vacated and the case remanded

for further proceedings consistent with this opinion. The record indicates that Defendant filed a motion for new trial in the trial

court on January 22, 2015, alleging that the verdict was contrary to the law and

evidence. However, the record before this court does not indicate that the trial

court ruled on Defendant’s motion for new trial. By affidavit dated September 17,

2015, an authorized representative of the fourteenth judicial district clerk of court’s

office verified that the motion has never been ruled upon. Defendant was

sentenced on January 28, 2015. Hence, Defendant was sentenced while his motion

for new trial was still pending.

In State v. Leonard, 99-800 (La.App. 3 Cir. 2/2/00), 758 So.2d 238, in its

error patent review, this court discovered there was no ruling on the defendant’s

motion for post verdict judgment of acquittal. This court held in pertinent part:

[Louisiana Code Criminal Procedure] art. 821 requires that a motion for post verdict judgment of acquittal be filed and disposed of before sentencing. La.Code Crim.P. art. 853 also requires that a motion for new trial be filed and disposed of before sentencing. When such motions are filed but not disposed of before sentencing, the sentence must be vacated and the case remanded for disposition of the motions before resentencing. State v. Townsend, 94-658 (La.App. 3 Cir. 12/7/94); 647 So.2d 535; State v. Randolph, 409 So.2d 554 (La.1981); El-Mumit v. Twenty-First Judicial District Court, 500 So.2d 414 (La.1987). Although the motion for new trial was eventually ruled upon, it was not ruled upon until after sentence was imposed. The motion for post verdict judgment of acquittal, on the other hand, has not yet been ruled upon. Thus, the Defendant’s sentence is vacated and the case remanded for disposition of the motion for post verdict judgment of acquittal and, if necessary, resentencing.

A discussion of the remaining assignments of errors is pretermitted by this court’s remand. The Defendant’s right to appeal his conviction and sentence is preserved.

Id. at 239-40.

More recently, in State v. Freeman, 15-251 (La.App. 3 Cir. 10/7/15), 175

So.3d 1104, this court determined that when a defendant’s motion for post verdict

2 judgment of acquittal is filed and not ruled upon, the appropriate remedy is to

pretermit discussion of the defendant’s assignment of error, vacate the defendant’s

sentence, and remand for a ruling on the defendant’s motion for post verdict

judgment of acquittal, and, if necessary, resentencing. This court also noted that

the defendant’s right to appeal his conviction and sentence was preserved.

Consequently, in accordance with Leonard and Freeman, we vacate

Defendant’s sentence and remand this matter for Defendant’s motion for new trial

to be addressed and decided by the trial court. Should Defendant’s motion be

denied, he shall be resentenced, and his right to appeal his sentence and conviction

shall be preserved.

DISPOSITION

Defendant’s sentence is vacated, and the case is remanded to the trial court

for disposition of Defendant’s motion for new trial and for resentencing, if

necessary. Defendant’s right to appeal his conviction and sentence is preserved.