State v. Branch

696 So. 2d 81, 1997 WL 266813
CourtLouisiana Court of Appeal
DecidedMay 21, 1997
Docket96-1626
StatusPublished
Cited by12 cases

This text of 696 So. 2d 81 (State v. Branch) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Branch, 696 So. 2d 81, 1997 WL 266813 (La. Ct. App. 1997).

Opinion

696 So.2d 81 (1997)

STATE of Louisiana, Appellant.
v.
Alvin Wayne BRANCH, Defendant-Appellee.

No. 96-1626.

Court of Appeal of Louisiana, Third Circuit.

May 21, 1997.

*82 Charles F. Wagner, District Atty., for State.

Willard Trichel Armitage, Jr., Alexandria, for Alvin Wayne Branch.

Before YELVERTON, COOKS and GREMILLION, JJ.

GREMILLION, Judge.

In this appeal, the State claims the trial court erred by amending Defendant's five-year sentence to run concurrently with his existing sentence of ten years. We reverse and remand with instructions.

FACTS

Defendant, Alvin Wayne Branch, was charged by bill of information with distribution of a controlled dangerous substance, schedule II, in violation of La.R.S. 40:967(A). Ultimately, Defendant withdrew his plea of not guilty and entered a plea of guilty. Pursuant to a plea agreement, the trial court sentenced him to serve five years at hard labor, to run consecutively with his sentence in a prior conviction. Eight months later, the trial court summarily and ex parte granted Defendant's pro se Motion for a Concurrent Sentence. Finally, the trial court denied the State's Motion to Reconsider. The State now seeks appellate review. We reverse and render accordingly.

PROCEDURAL HISTORY

Some procedural history is necessary regarding Defendant's criminal record. On March 11, 1991, Defendant entered a plea of guilty to possession with intent to distribute cocaine (Docket No. 229,477). On August 21, 1995, Defendant was sentenced to ten years at hard labor for distribution of cocaine (Docket No. 239,010), to run concurrently with the sentence in Docket No. 229,477. On November 7, 1994, Defendant was arrested on a drug charge and entered a plea of guilty to the present charge of distribution of cocaine on February 2, 1996 (Docket No. 241,060). On February 12, 1996, the trial court sentenced him to serve five years at hard labor to run consecutively with the ten-year sentence Defendant received in Docket No. 239,010. The sentence was a stipulated sentence pursuant to a plea bargain in which the State agreed that if Defendant pled guilty to Docket No. 241,060, Defendant would receive five years at hard labor in exchange for the State not filing a habitual offender bill against him.

On or about September 20, 1996, Defendant filed a pro se Motion for a Concurrent Sentence, petitioning the trial court to modify his five-year sentence to have it run concurrently with his ten-year sentence previously imposed under Docket No. 239,010. The District Attorney's office was not served with, nor provided a copy of this motion. The trial court, ex parte, granted Defendant's motion on October 3, 1996. On October 25, 1996, the State filed a Motion to Reconsider, which was summarily denied by the trial court. The State appeals, assigning three assignments of error.

ASSIGNMENTS OF ERROR NUMBERS ONE AND THREE

The State claims the trial court erred in modifying, ex parte, a stipulated sentence entered by the trial court as a result of a plea bargain between Defendant and the State after execution of sentence had begun, and in failing to grant the State's Motion to Reconsider the trial court's ex parte amendment to the original sentence.

The State filed a Motion to Reconsider Sentence twenty-one days after Defendant's Motion for a Concurrent Sentence was granted. La.Code Crim.P. art. 881.2(B) provides that the State may appeal or seek review of a sentence:

(1) If the sentence imposed was not in conformity with:
(a) Mandatory requirements of the statute under which the defendant was convicted, or any other applicable mandatory sentence provision; or
(b) The applicable enhancement provisions under the Habitual Offender Law, R.S. 15:529.1; and
(2) If the state objected at the time the sentence was imposed or made or filed a motion to reconsider sentence under this Article.

*83 In this case, the State did not object at the time sentence was imposed because the sentence was in accordance with the plea agreement. However, the State did file a Motion to Reconsider Sentence after the trial court granted Defendant's Motion for a Concurrent Sentence without notice to the State. The State was not contesting the sentence given, but was contesting the trial court's actions in arriving at the new sentence.

La.Code Crim.P. art. 912(B) lists adverse judgments from which the State may appeal: a motion to quash an indictment or any count thereof; a plea of time limitation; a plea of double jeopardy; a motion in arrest of judgment; a motion to change the venue; and a motion to recuse. In this instance, the State should not have filed this appeal since there was no ground for appeal under La. Code Crim.P. art. 912(B). Instead, the State should have filed a writ requesting the court to review the trial court's actions under La. Code Crim.P. art. 912.1(C).

A writ would be properly before this court since Rule 4-3 of the Uniform Rules—Courts of Appeal gives a party thirty days from the date of the ruling at issue in which to give notice of intent and request a return date to file a writ. We find that the State could have filed a timely writ, which this court could have considered by exercising its supervisory jurisdiction under Art. V, § 10 of the Louisiana Constitution of 1974. Therefore, we shall accord this matter writ status on our own motion.

A defendant who wishes to contest his conviction and sentence, must follow the proper procedures articulated in the Louisiana Code of Criminal Procedure. There are four vehicles for relief available to the Defendant after his conviction and sentencing: (1) an appeal, (2) application for post-conviction relief, (3) a motion to reconsider sentence, and (4) a motion to amend the sentence. Each vehicle for relief must be timely filed.

Defendant's Motion for a Concurrent Sentence was not filed within thirty days of imposition of sentence and he did not file a timely appeal. Thus, the judgment became final, and, once final, Defendant's possibilities for review were limited. Review by appeal or motion to reconsider sentence were no longer viable. Thus, Defendant should have either filed a motion pursuant to La. Code Crim.P. art. 881.5 alleging illegality of sentence, or filed a motion pursuant to La. Code Crim.P. art. 881 if he had not begun to serve his sentence at hard labor. Defendant filed the latter.

In his motion, Defendant requested that the trial court reduce his sentence to run concurrently since, "[a]t the time of his sentence, relator's attorney failed to request to the sentencing judge, to have his sentence to run concurrent with his 10-year sentence in another case." Defendant was sentenced on February 12, 1996, and did not file his motion until September 20, 1996. It was summarily granted by the trial court on October 3, 1996, without notice to the State. Further, there is no evidence in the record that the trial court granted Defendant additional time under La.Code Crim.P. art. 881.1(A)(1) in which to file his motion.

La.Code Crim.P. art. 881 provides:

A. Although the sentence imposed is legal in every respect, the court may amend or change the sentence, within the legal limits of its discretion, prior to the beginning of execution of the sentence.
B.

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Cite This Page — Counsel Stack

Bluebook (online)
696 So. 2d 81, 1997 WL 266813, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-branch-lactapp-1997.