State of Louisiana v. James Bowden

• Court: Louisiana Court of Appeal
• Decided: January 9, 2013
• Docket: KA-0012-1352
• Status: Unknown

Opinion

STATE OF LOUISIANA

COURT OF APPEAL, THIRD CIRCUIT

12-1352

VERSUS

JAMES BOWDEN

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

APPEAL FROM THE SIXTEENTH JUDICIAL DISTRICT COURT PARISH OF IBERIA, NO. 09-1627 HONORABLE KEITH RAYNE JULES COMEAUX, DISTRICT JUDGE

************ JAMES T. GENOVESE JUDGE ************

Court composed of Marc T. Amy, James T. Genovese, and Shannon J. Gremillion, Judges.

CONVICTIONS AND SENTENCE VACATED; PROSECUTION ABATED FROM INCEPTION.

J. Phillip Haney, District Attorney - 16th JDC Robert Clausen Vines, Assistant District Attorney 300 Iberia Street, Suite 200 New Iberia, Louisiana 70560 (337) 369-4420 COUNSEL FOR APPELLEE: State of Louisiana

Annette Fuller Roach Louisiana Appellate Project Post Office Box 1747 Lake Charles, Louisiana 70602-1747 (337) 436-2900 COUNSEL FOR APPELLANT/DEFENDANT: James Bowden GENOVESE, Judge.

On September 6, 2011, Defendant entered an Alford plea to the charges of

aggravated burglary and aggravated assault on a police officer. Subsequently, on

November 3, 2011, the sentencing court imposed a sentence of fifteen years at hard

labor without designating to which offense the penalty applied.

On June 12, 2012, Defendant filed a motion for appeal, and the trial court

granted the out-of-time appeal on the same date. Thereafter, on July 22, 2012,

Defendant died of natural causes at the Bogalusa Medical Center. The appeal

record was lodged with this court on November 26, 2012.

On December 10, 2012, defense counsel filed a “Motion to Vacate the

Judgments of Conviction and Abate Prosecution Ab Initio” with this court.

Defense counsel asserts that, under the cited jurisprudence, a defendant’s

convictions and sentences should be vacated and the prosecution voided ab initio

when that defendant dies during the pendency of his appeal. State v. Harvey,

94-343, p. 1 (La. 10/20/94), 644 So.2d 371, 371 (citing State v. McClow, 364 So.2d

566, 566 (La.1978); State v. Morris, 328 So.2d 65, 67 (La.1976)); State v. Burton,

46,552, p. 1 (La.App. 2 Cir. 9/21/11), 74 So.3d 253, 253-54.

Examination of the law and cited jurisprudence confirms that relief is due

based on the facts in this case. Accordingly, Defendant’s convictions and sentence

are vacated and all proceedings in this prosecution are abated from their inception.

CONVICTIONS AND SENTENCE VACATED; PROSECUTION ABATED FROM INCEPTION.