STATE OF LOUISIANA NO. 23-KA-235
VERSUS FIFTH CIRCUIT
ERROL VICTOR SR. COURT OF APPEAL
STATE OF LOUISIANA
ON APPEAL FROM THE FORTIETH JUDICIAL DISTRICT COURT PARISH OF ST. JOHN THE BAPTIST, STATE OF LOUISIANA NO. 10,172, DIVISION "B" HONORABLE DENNIS J. WALDRON, JUDGE AD HOC, PRESIDING
January 24, 2024
SCOTT U. SCHLEGEL JUDGE
Panel composed of Judges Susan M. Chehardy, Fredericka Homberg Wicker, and Scott U. Schlegel
SENTENCE VACATED; REMANDED FOR RESENTENCING SUS SMC FHW COUNSEL FOR DEFENDANT/APPELLANT, ERROL VICTOR Deidre K. Peterson
DEFENDANT/APPELLANT, ERROL VICTOR, SR. In Proper Person SCHLEGEL, J.
Defendant, Errol Victor Sr., appeals his conviction and sentence for second
degree murder. Following our errors patent review, we have determined that the
trial court prematurely granted defendant’s motion for appeal before imposing his
sentence. Thus, the trial court was divested of jurisdiction at the time of
sentencing. For reasons explained more fully below, we vacate defendant’s
sentence and remand for resentencing.
PROCEDURAL BACKGROUND
On April 12, 2010, a St. John the Baptist Parish Grand Jury indicted
defendant, Errol Victor Sr., for the second degree murder of his eight-year-old
stepson, M.L. Lloyd III, while engaged in the perpetration of the crime of cruelty
to a juvenile, in violation of La. R.S. 14:30.1(A)(2)(b). On August 1, 2014, a jury
returned a non-unanimous (ten to two) verdict of guilty as charged. The trial court
subsequently sentenced defendant to life imprisonment without the benefit of
probation, parole, or suspension of sentence. On May 26, 2016, this Court
affirmed defendant’s conviction and sentence. State v. Victor, 15-339 (La. App. 5
Cir. 5/26/16), 195 So.3d 128, writ denied, 16-1516 (La. 10/15/18), 253 So.3d 1300.
On April 20, 2020, the United States Supreme Court handed down its
decision in Ramos v. Louisiana, 590 U.S. --, 140 S.Ct. 1390, 206 L.Ed.2d 583
(2020), finding that the Sixth Amendment right to a jury trial — as incorporated
against the States by the Fourteenth Amendment — requires a unanimous verdict
to convict a defendant of a serious offense. On April 27, 2020, the United States
Supreme Court granted certiorari in defendant’s case, and reversed this Court’s
decision affirming defendant’s conviction and sentence in light of its decision in
Ramos. See Victor v. Louisiana, -- U.S. --, 140 S.Ct. 2715, 206 L.Ed.2d 851
(2020). As a result, on June 19, 2020, this Court vacated defendant’s conviction
23-KA-235 1 and sentence, and remanded the matter to the trial court for further proceedings.
State v. Victor, 15-339 (La. App. 5 Cir. 6/19/20), 307 So.3d 317.
Following a second trial, a unanimous jury found defendant guilty of second
degree murder on July 20, 2022. Defendant filed a motion for appeal on
September 20, 2022. The trial court signed an order granting the motion on
September 21, 2022, just prior to sentencing. This is evidenced by the fact that
prior to sentencing, the trial judge stated that he was “turn[ing] over” the motion
for appeal and “the order that grants the appeal” to the court’s clerk. The trial
court then imposed a sentence of life imprisonment without the benefit of parole,
probation, or suspension of sentence in error. The trial court was divested of
jurisdiction the moment it granted defendant’s appeal.
Defendant’s trial counsel then filed motions to withdraw as counsel of
record and the Louisiana Appellate Project was appointed to represent defendant
on appeal. On January 3, 2023, defendant filed a pro se “Motion to Proceed on
Direct Appeal Pro-Se To Reject the Louisiana Appellate Project Appointment and
Attorney Prentice L. White.” In this motion, defendant refused the Louisiana
Appellate Project appointment and asked to proceed pro se on appeal because he
was previously allowed to represent himself on appeal. The trial court granted the
motion on January 18, 2023.
Then, on February 6, 2023, defendant filed a motion to withdraw his January
3, 2023 motion to proceed pro se and terminate the Louisiana Appellate Project.
He also moved to reserve the right to review the record and supplement the
appellant brief filed on his behalf by the Louisiana Appellate Project. On February
8, 2023, the trial court granted the motion in part allowing defendant to withdraw
his motion to proceed pro se, and again appointed the Louisiana Appellate Project
to represent defendant on appeal. However, the trial court denied defendant’s
“request for the right to review or conditionally approve any part of the appeal”
23-KA-235 2 and further stated that “defendant is not entitled to be represented by counsel and
to represent himself simultaneously.”1
On April 26, 2023, defendant filed a pro se “Motion to Envoke Six [sic]
Amendment Right to Self-Representation Filing on Direct Appeal ‘Faretta
Rights.’” In this motion, defendant requested a Faretta2 hearing for the trial court
to consider whether he should be permitted to represent himself pro se on appeal.
The trial court did not take any action on the motion. Then, on June 13, 2023,
attorney Deidre K. Peterson filed a Motion to Enroll as Counsel of Record, which
this Court granted on the same day. On June 19, 2023, Prentice White of the
Louisiana Appellate Project filed a Motion to Withdraw as Appellate Counsel, and
this Court granted the motion on June 20, 2023.
Subsequently, on June 22, 2023, relator filed a “Writ of Right Writ of
Mandamus/Stay” with this Court, in which he argued that the trial court had not
acted on his pro se “Motion to Envoke Six [sic] Amendment Right to Self-
Representation Filing on Direct Appeal ‘Faretta Rights.’” On June 30, 2023, this
Court granted relator’s writ of mandamus in part and remanded the matter for the
trial court to rule on relator’s April 26, 2023 motion requesting a Faretta hearing.
This Court denied relator’s request to extend the briefing deadlines and stay his
appeal.
On July 31, 2023, the trial court held a Faretta hearing and determined that
defendant could represent himself on appeal. Prior to that date, defendant’s
counsel of record filed an appellant brief with this Court on July 28, 2023. On
August 8, 2023, this Court issued an order to transmit the appellate record to
1 We point out that Local Rule 6-1 of the Court of Appeal, Fifth Circuit requires a criminal defendant’s appellate counsel to send a notice to the defendant with the appellant brief informing the defendant of the right to file a supplemental pro se brief within 30 days of the mailing of the notice by counsel, as well as the right to request to review the appellate record within 10 days of the mailing of the notice by counsel.
2 Faretta v. California, 422 U.S. 806, 835, 95 S.Ct. 2525, 2541, 45 L.Ed.2d 562 (1975).
23-KA-235 3 defendant and allowing him 30 days to file an appellate brief. On August 10,
2023, defendant’s counsel of record filed a motion to withdraw, which this Court
granted on the following day, August 11, 2023. After this Court granted defendant
two additional 30-day extensions of time, defendant filed his appellant brief with
this Court on October 27, 2023.
DISCUSSION
We first address the jurisdictional issue created due to the trial court’s
Free access — add to your briefcase to read the full text and ask questions with AI
STATE OF LOUISIANA NO. 23-KA-235
VERSUS FIFTH CIRCUIT
ERROL VICTOR SR. COURT OF APPEAL
STATE OF LOUISIANA
ON APPEAL FROM THE FORTIETH JUDICIAL DISTRICT COURT PARISH OF ST. JOHN THE BAPTIST, STATE OF LOUISIANA NO. 10,172, DIVISION "B" HONORABLE DENNIS J. WALDRON, JUDGE AD HOC, PRESIDING
January 24, 2024
SCOTT U. SCHLEGEL JUDGE
Panel composed of Judges Susan M. Chehardy, Fredericka Homberg Wicker, and Scott U. Schlegel
SENTENCE VACATED; REMANDED FOR RESENTENCING SUS SMC FHW COUNSEL FOR DEFENDANT/APPELLANT, ERROL VICTOR Deidre K. Peterson
DEFENDANT/APPELLANT, ERROL VICTOR, SR. In Proper Person SCHLEGEL, J.
Defendant, Errol Victor Sr., appeals his conviction and sentence for second
degree murder. Following our errors patent review, we have determined that the
trial court prematurely granted defendant’s motion for appeal before imposing his
sentence. Thus, the trial court was divested of jurisdiction at the time of
sentencing. For reasons explained more fully below, we vacate defendant’s
sentence and remand for resentencing.
PROCEDURAL BACKGROUND
On April 12, 2010, a St. John the Baptist Parish Grand Jury indicted
defendant, Errol Victor Sr., for the second degree murder of his eight-year-old
stepson, M.L. Lloyd III, while engaged in the perpetration of the crime of cruelty
to a juvenile, in violation of La. R.S. 14:30.1(A)(2)(b). On August 1, 2014, a jury
returned a non-unanimous (ten to two) verdict of guilty as charged. The trial court
subsequently sentenced defendant to life imprisonment without the benefit of
probation, parole, or suspension of sentence. On May 26, 2016, this Court
affirmed defendant’s conviction and sentence. State v. Victor, 15-339 (La. App. 5
Cir. 5/26/16), 195 So.3d 128, writ denied, 16-1516 (La. 10/15/18), 253 So.3d 1300.
On April 20, 2020, the United States Supreme Court handed down its
decision in Ramos v. Louisiana, 590 U.S. --, 140 S.Ct. 1390, 206 L.Ed.2d 583
(2020), finding that the Sixth Amendment right to a jury trial — as incorporated
against the States by the Fourteenth Amendment — requires a unanimous verdict
to convict a defendant of a serious offense. On April 27, 2020, the United States
Supreme Court granted certiorari in defendant’s case, and reversed this Court’s
decision affirming defendant’s conviction and sentence in light of its decision in
Ramos. See Victor v. Louisiana, -- U.S. --, 140 S.Ct. 2715, 206 L.Ed.2d 851
(2020). As a result, on June 19, 2020, this Court vacated defendant’s conviction
23-KA-235 1 and sentence, and remanded the matter to the trial court for further proceedings.
State v. Victor, 15-339 (La. App. 5 Cir. 6/19/20), 307 So.3d 317.
Following a second trial, a unanimous jury found defendant guilty of second
degree murder on July 20, 2022. Defendant filed a motion for appeal on
September 20, 2022. The trial court signed an order granting the motion on
September 21, 2022, just prior to sentencing. This is evidenced by the fact that
prior to sentencing, the trial judge stated that he was “turn[ing] over” the motion
for appeal and “the order that grants the appeal” to the court’s clerk. The trial
court then imposed a sentence of life imprisonment without the benefit of parole,
probation, or suspension of sentence in error. The trial court was divested of
jurisdiction the moment it granted defendant’s appeal.
Defendant’s trial counsel then filed motions to withdraw as counsel of
record and the Louisiana Appellate Project was appointed to represent defendant
on appeal. On January 3, 2023, defendant filed a pro se “Motion to Proceed on
Direct Appeal Pro-Se To Reject the Louisiana Appellate Project Appointment and
Attorney Prentice L. White.” In this motion, defendant refused the Louisiana
Appellate Project appointment and asked to proceed pro se on appeal because he
was previously allowed to represent himself on appeal. The trial court granted the
motion on January 18, 2023.
Then, on February 6, 2023, defendant filed a motion to withdraw his January
3, 2023 motion to proceed pro se and terminate the Louisiana Appellate Project.
He also moved to reserve the right to review the record and supplement the
appellant brief filed on his behalf by the Louisiana Appellate Project. On February
8, 2023, the trial court granted the motion in part allowing defendant to withdraw
his motion to proceed pro se, and again appointed the Louisiana Appellate Project
to represent defendant on appeal. However, the trial court denied defendant’s
“request for the right to review or conditionally approve any part of the appeal”
23-KA-235 2 and further stated that “defendant is not entitled to be represented by counsel and
to represent himself simultaneously.”1
On April 26, 2023, defendant filed a pro se “Motion to Envoke Six [sic]
Amendment Right to Self-Representation Filing on Direct Appeal ‘Faretta
Rights.’” In this motion, defendant requested a Faretta2 hearing for the trial court
to consider whether he should be permitted to represent himself pro se on appeal.
The trial court did not take any action on the motion. Then, on June 13, 2023,
attorney Deidre K. Peterson filed a Motion to Enroll as Counsel of Record, which
this Court granted on the same day. On June 19, 2023, Prentice White of the
Louisiana Appellate Project filed a Motion to Withdraw as Appellate Counsel, and
this Court granted the motion on June 20, 2023.
Subsequently, on June 22, 2023, relator filed a “Writ of Right Writ of
Mandamus/Stay” with this Court, in which he argued that the trial court had not
acted on his pro se “Motion to Envoke Six [sic] Amendment Right to Self-
Representation Filing on Direct Appeal ‘Faretta Rights.’” On June 30, 2023, this
Court granted relator’s writ of mandamus in part and remanded the matter for the
trial court to rule on relator’s April 26, 2023 motion requesting a Faretta hearing.
This Court denied relator’s request to extend the briefing deadlines and stay his
appeal.
On July 31, 2023, the trial court held a Faretta hearing and determined that
defendant could represent himself on appeal. Prior to that date, defendant’s
counsel of record filed an appellant brief with this Court on July 28, 2023. On
August 8, 2023, this Court issued an order to transmit the appellate record to
1 We point out that Local Rule 6-1 of the Court of Appeal, Fifth Circuit requires a criminal defendant’s appellate counsel to send a notice to the defendant with the appellant brief informing the defendant of the right to file a supplemental pro se brief within 30 days of the mailing of the notice by counsel, as well as the right to request to review the appellate record within 10 days of the mailing of the notice by counsel.
2 Faretta v. California, 422 U.S. 806, 835, 95 S.Ct. 2525, 2541, 45 L.Ed.2d 562 (1975).
23-KA-235 3 defendant and allowing him 30 days to file an appellate brief. On August 10,
2023, defendant’s counsel of record filed a motion to withdraw, which this Court
granted on the following day, August 11, 2023. After this Court granted defendant
two additional 30-day extensions of time, defendant filed his appellant brief with
this Court on October 27, 2023.
DISCUSSION
We first address the jurisdictional issue created due to the trial court’s
decision to grant defendant’s motion for appeal prior to sentencing defendant.
Pursuant to La. C.Cr.P. art. 916, a trial court is divested of jurisdiction, and the
jurisdiction of the appellate court attaches, upon the granting of a defendant's
motion for appeal. State v. Calloway, 18-708 (La. App. 5 Cir. 4/24/19), 271 So.3d
349, 351; State v. Johnson, 13-75 (La. App. 5 Cir. 10/9/13), 128 So.3d 325,
327. Once the trial court is divested of jurisdiction, it may take only certain
specified actions, none of which include imposing a sentence (except an enhanced
sentence under the habitual offender law, La. R.S. 15:529.1). La. C.Cr.P. art. 916;
State v. Dillon, 22-229 (La. App. 5 Cir. 2/27/23), 358 So.3d 934, 936. A defendant
can appeal from a final judgment of conviction only when the sentence has been
imposed. La. C.Cr.P. art. 912; Calloway, 271 So.3d at 352.
Upon the granting of defendant's motion for appeal on September 21, 2022,
the trial court was immediately divested of jurisdiction. Accordingly, we vacate
defendant’s sentence and remand this matter for resentencing. Once defendant has
been resentenced, he has the right to appeal his conviction and sentence.
SENTENCE VACATED; REMANDED FOR RESENTENCING
23-KA-235 4 SUSAN M. CHEHARDY CURTIS B. PURSELL
CHIEF JUDGE CLERK OF COURT
SUSAN S. BUCHHOLZ FREDERICKA H. WICKER CHIEF DEPUTY CLERK JUDE G. GRAVOIS MARC E. JOHNSON STEPHEN J. WINDHORST LINDA M. WISEMAN JOHN J. MOLAISON, JR. FIRST DEPUTY CLERK SCOTT U. SCHLEGEL TIMOTHY S. MARCEL FIFTH CIRCUIT MELISSA C. LEDET JUDGES 101 DERBIGNY STREET (70053) DIRECTOR OF CENTRAL STAFF POST OFFICE BOX 489 GRETNA, LOUISIANA 70054 (504) 376-1400
(504) 376-1498 FAX www.fifthcircuit.org
NOTICE OF JUDGMENT AND CERTIFICATE OF DELIVERY I CERTIFY THAT A COPY OF THE OPINION IN THE BELOW-NUMBERED MATTER HAS BEEN DELIVERED IN ACCORDANCE WITH UNIFORM RULES - COURT OF APPEAL, RULE 2-16.4 AND 2-16.5 THIS DAY JANUARY 24, 2024 TO THE TRIAL JUDGE, CLERK OF COURT, COUNSEL OF RECORD AND ALL PARTIES NOT REPRESENTED BY COUNSEL, AS LISTED BELOW:
23-KA-235 E-NOTIFIED 40TH DISTRICT COURT (CLERK) HONORABLE NGHANA LEWIS (DISTRICT JUDGE) HONORABLE BRIDGET A. DINVAUT CHRISTOPHER N. WALTERS (APPELLEE) GRANT L. WILLIS (APPELLEE) (APPELLEE)
MAILED HONORABLE DENNIS J. WALDRON DEIDRE K. PETERSON (APPELLANT) ERROL VICTOR SR. #613100 (DISTRICT JUDGE) ATTORNEY AT LAW (APPELLANT) 40TH JUDICIAL DISTRICT COURT 102 BRUNSWICK COURT DAVID WADE CORRECTIONAL CENTER JUDGE AD HOC, DIVISION "B" NEW ORLEANS, LA 70131 670 BELL HILL ROAD POST OFFICE BOX 280 HOMER, LA 71040 EDGARD, LA 70049
PRENTICE L. WHITE (APPELLANT) ATTORNEY AT LAW LOUISIANA APPELLATE PROJECT 16731 CICERO AVENUE BATON ROUGE, LA 70816