State of Louisiana Versus Terone R. Thomas

• Court: Louisiana Court of Appeal
• Decided: November 20, 2024
• Docket: 24-KA-505
• Status: Unknown

Opinion

STATE OF LOUISIANA NO. 24-KA-505 VERSUS TERONE R. THOMAS FIFTH CIRCUIT

COURT OF APPEAL

STATE OF LOUISIANA

ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH OF JEFFERSON, STATE OF LOUISIANA NO. 19-4399, DIVISION "P" HONORABLE LEE V. FAULKNER, JR., JUDGE PRESIDING

November 20, 2024

JUDE G. GRAVOIS JUDGE

Panel composed of Judges Fredericka Homberg Wicker, Jude G. Gravois, and Scott U. Schlegel

APPEAL DISMISSED WITHOUT PREJUDICE; RESTITUTION VACATED; REMANDED JGG FHW SUS GRAVOIS, J.

Defendant, Terone R. Thomas, comes before this Court in a second appeal

following a conviction for simple arson. For the reasons that follow, we dismiss

the appeal without prejudice, vacate the order of restitution, and remand for further

proceedings.

PROCEDURAL HISTORY

On September 19, 2019, the Jefferson Parish District Attorney filed a bill of

information charging defendant with two counts of aggravated arson, in violation

of La. R.S. 14:51, against Debra Lindsey (count one), and a six-year-old female

(count two).1 Defendant entered a plea of not guilty. On April 25, 2022, count two

of the bill was nolle prossed. On the same date, the State amended count one to

read: “... located at 2032/2034 James Drive in Marrero, LA belonging to another

with damage amounting to $500 or more where it was foreseeable that human life

might be endangered.” On May 6, 2022, defendant was convicted of the

responsive verdict of simple arson with the damage amounting to five hundred

dollars, or more, in violation of La. R.S. 14:52. On November 9, 2022, defendant

was sentenced to five years imprisonment at hard labor, with credit for time served,

and ordered to pay $4,500 in restitution.

On appeal, this Court affirmed defendant’s conviction, but finding that the

record did “not contain sufficient evidence to support the amount of restitution

ordered[,]” vacated his sentence and remanded the matter “to the trial court for a

restitution hearing to allow the parties to present evidence concerning the amount

1 As to count one, the bill of information provides that defendant: violated La. R.S. 14:51 in that he did commit aggravated arson of a residential duplex, located at 2032 and 2034 James Drive in Marrero, LA belonging to Debra Lindsey … . As to count two, the bill of information provides that defendant: violated La. R.S. 14:51 in that he did commit aggravated arson of a residential duplex, located at 2032 and 2034 James Drive in Marrero, LA belonging to a six-year-old, black female, known to the State of Louisiana … .

24-KA-505 1 of restitution owed and resentencing.” State v. Thomas, 23-234 (La. App. 5 Cir.

12/27/23), 379 So.3d 182, 196.

Upon remand, on January 31, 2024, defendant appeared before the trial court

for a “5th Circuit Remand-Resentencing and Restitution Hearing.” The matter was

continued to February 21, 2024. On February 21, 2024, a “restitution hearing” was

held, and defendant was ordered to pay $3,000 in restitution to the victim. On the

same date, defendant filed a motion for appeal. A July 24, 2024 minute entry notes

that a “Resentencing, Restitution, and Ability to Pay hearing” was set for

September 18, 2024. On September 18, 2024, the trial court held an “ability to pay

hearing” and found that defendant did not have the ability to pay. On September

23, 2024, the trial court granted defendant’s motion for appeal.

ANALYSIS

Defendant’s sentence was vacated by this Court in his original appeal. The

matter was remanded for a restitution hearing to allow the parties to present

evidence concerning the amount of restitution owed and resentencing. A review of

the record before us reveals that, although a restitution hearing occurred and an

amount of restitution was set, defendant was never resentenced.

Louisiana Code of Criminal Procedure Article 883.2(A) provides that “[i]n

all cases in which the court finds an actual pecuniary loss to a victim, or in any

case where the court finds that costs have been incurred by the victim in

connection with a criminal prosecution, the trial court shall order the defendant to

provide restitution to the victim as a part of any sentence that the court shall

impose.” (Emphasis added.)

Pursuant to La. C.Cr.P. art. 912(C)(1), a defendant can appeal from a final

judgment of conviction only where a sentence has been imposed. In State v.

Peters, 611 So.2d 191 (La. App. 5 Cir. 1992), the trial court sentenced the

defendant to imprisonment at hard labor for two years, suspended the execution of

24-KA-505 2 her sentence, placed the defendant on active probation, and set restitution in the

amount of $102,000.00 following a restitution hearing. The defendant appealed

the amount of restitution. On appeal, this Court found that it had appellate

jurisdiction stating, “[s]ince the amount of restitution set at the subsequent hearing

was set in connection with the previously imposed sentence we consider this an

appeal from a judgment which imposes sentence. La. C.Cr.P. art. 912 C(1).” Id. at

192. (Emphasis added by this Court.)

Upon review, we find Peters distinguishable from the present case. Unlike

Peters, in the present case, defendant was never resentenced and he currently has

no sentence at hard labor in effect. The restitution was not set in connection with

or as part of a sentence. Therefore, because defendant was never resentenced, we

lack appellate jurisdiction and are therefore constrained at this time to dismiss

defendant’s appeal without prejudice. Accordingly, we vacate the restitution

ordered and remand this matter for further proceedings (i.e., for resentencing in

compliance with this Court’s original directive in its December 27, 2023 opinion

and reimposition of the restitution). Defendant’s right to appeal his resentence,

including the amount of restitution, is reserved.2

DECREE

For the foregoing reasons, we dismiss the present appeal without prejudice

and remand for further proceedings as set forth above.

APPEAL DISMISSED WITHOUT PREJUDICE; RESTITUTION VACATED; REMANDED

2 In his motion for appeal in the present case, defendant states he is appealing his conviction for simple arson. Because this Court previously affirmed defendant’s conviction in his original appeal, he will henceforth only be able to appeal his resentencing.

24-KA-505 3 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 NOVEMBER 20, 2024 TO THE TRIAL JUDGE, CLERK OF COURT, COUNSEL OF RECORD AND ALL PARTIES NOT REPRESENTED BY COUNSEL, AS LISTED BELOW:

24-KA-505 E-NOTIFIED 24TH JUDICIAL DISTRICT COURT (CLERK) HON. LEE V. FAULKNER, JR. (DISTRICT JUDGE) LIEU T. VO CLARK (APPELLANT) JULIET L. CLARK (APPELLEE) THOMAS J. BUTLER (APPELLEE)

MAILED NO ATTORNEYS WERE MAILED