State of Louisiana v. Tommy Bordelon

Opinion

STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT

08-935

STATE OF LOUISIANA

VERSUS

TOMMY BORDELON

**********

APPEAL FROM THE TWELFTH JUDICIAL DISTRICT COURT, PARISH OF AVOYELLES, NO. 117139 HONORABLE ARTHUR PLANCHARD, DISTRICT JUDGE

**********

J. DAVID PAINTER JUDGE

**********

Court composed of Oswald A. Decuir, J. David Painter, and James T. Genovese, Judges.

SENTENCE VACATED AND REMANDED.

James E. Beal, Attorney at Law Louisiana Appellate Project P.O. Box 307 Jonesboro, LA 71251-0307 Counsel for Defendant-Appellant: Tommy Bordelon

Michael F. Kelly, First Assistant District Attorney Office of the District Attorney P.O. Box 528 Marksville, LA 71351 Counsel for Appellee: State of Louisiana PAINTER, Judge.

Defendant, Tommy Bordelon, appeals the sentence on his conviction (as a

habitual offender) for car jacking, a violation of La.R.S. 64.2. Finding that

Defendant’s sentence is improper as having occurred in the wrong docket number, we

vacate Defendant’s sentence and remand the matter to the trial court for further

proceedings.

FACTUAL AND PROCEDURAL BACKGROUND

On June 3, 2003, Defendant was convicted of car jacking in the Twelfth

Judicial District Court, docket number 117,139. He was adjudicated a third felony

habitual offender in trial court docket number 118,447 on August 29, 2003, and

sentenced to twenty-five years at hard labor. Defendant’s conviction and sentence

were affirmed on appeal. State v. Bordelon, an unpublished opinion bearing docket

numbers 04-490 and 04-491 (La.App. 3 Cir. 2/2/05), writ denied, 05-959 (La.

4/17/06), 926 So.2d 500.

Defendant’s conviction for stalking, which occurred after Defendant pled guilty

to stalking on January 25, 1999, in the Twenty-Fourth Judicial District Court, docket

number 98-4883, was used to support his adjudication as a third felony offender.

Defendant appealed this conviction to the Louisiana Fifth Circuit Court of Appeal,

and on October 1, 2007, the fifth circuit found that Defendant’s conviction for

stalking was a misdemeanor and remanded the matter to the Twenty-Fourth Judicial

District Court and ordered the district court to correct the minute entry and

commitment order to reflect that Defendant pled guilty to a misdemeanor and not a

felony.

1 On October 25, 2007, Defendant filed a “Motion to Correct An Illegal

Sentence” in trial court docket number 117,139. Therein, he alleged that his sentence

was illegal because one of the predicate offenses used to enhance his sentence for car

jacking was found to be a misdemeanor. At a hearing held in trial court docket

number 117,139 on November 13, 2007, the trial court noted that Defendant had

committed two felonies and granted the motion.

On May 1, 2008, the trial court sentenced Defendant in trial court docket

number 117,139 to twelve years at hard labor without benefit of probation or

suspension of sentence as a second felony offender pursuant to La.R.S. 15:529.1. An

oral motion to reconsider sentence was made and denied.

A Motion for Appeal was filed in trial court docket number 117,139 on May

12, 2008, and granted. An Amended Motion for Appeal was filed on June 17, 2008.

Therein, defense counsel sought to have trial court docket number 118,447, the

docket number in which the habitual offender proceedings were held, included in the

appeal. The judge denied the motion, asserting that he had only been appointed to

hear matters in trial court docket number 117,139.1

Defendant is now before this court asserting two assignments of error. Therein,

he contends that: 1) he has been sentenced as a second felony habitual offender

without ever having been so adjudicated; and 2) the official court minutes and

commitment order, which deny him parole eligibility, are inconsistent with the

sentence pronounced in open court. Defendant has also filed a pro se brief in which

he asserts the following four assignments of error: 1) the trial court erred when it

1 By order dated March 26, 2008, Judge Arthur Planchard was assigned judge ad hoc by the supreme court to hear and dispose of the matter entitled “‘State of Louisiana vs. Tommy Bordelon,’ No. 117,139-A . . . subject to the completion of any unfinished business.”

2 failed to hold a readjudication hearing prior to resentencing to determine his offender

status after the original multiple offender adjudication was defective; 2) the trial court

erred when it failed to rule on his pro se motion to reconsider sentence; 3) the trial

court erred in failing to hold an evidentiary hearing on his pro se motion to quash;

and 4) Defendant asks this court to review the record for errors patent.

For the following reason, namely a procedural irregularity which renders the

sentence improper, we will not consider these assignments of error and vacate

Defendant’s sentence and remand the matter to the trial court for further proceedings.

DISCUSSION

Defendant was adjudicated a habitual offender in trial court docket number

118,447 and subsequently sentenced. Defendant filed his Motion to Correct Illegal

Sentence in trial court docket number 117,139. The motion was subsequently granted

by the trial court, and Defendant was found to be a second offender and sentenced in

that docket number. We find that the motion to correct Defendant’s sentence was

filed in the incorrect docket number, as no sentence had been imposed in trial court

docket number 117,139. Additionally, the resentencing occurred in the incorrect

docket number. The motion should have been filed and the resentencing should have

taken place in trial court docket number 118,447 since that was the docket in which

the habitual offender adjudication occurred. As Defendant was sentenced in the

incorrect docket number, his sentence is not proper. Therefore, Defendant’s sentence

must be vacated and the matter remanded to the trial court for further proceedings

consistent with this opinion. For this reason, we do not reach Defendant’s

assignments of error.

3 DECREE

Defendant’s sentence was improper as it occurred in the incorrect docket

number. Therefore, we vacate Defendant’s sentence and remand the matter to the

trial court for further proceedings.

SENTENCE VACATED AND REMANDED.