State v. Dunbar

657 So. 2d 429, 1995 WL 323266
CourtLouisiana Court of Appeal
DecidedMay 31, 1995
Docket94-1492
StatusPublished
Cited by8 cases

This text of 657 So. 2d 429 (State v. Dunbar) 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. Dunbar, 657 So. 2d 429, 1995 WL 323266 (La. Ct. App. 1995).

Opinion

657 So.2d 429 (1995)

STATE of Louisiana, Appellee,
v.
Chandler Elliot DUNBAR, Defendant-Appellant.

No. 94-1492.

Court of Appeal of Louisiana, Third Circuit.

May 31, 1995.

*430 Michael Harson, Lafayette, for State of La.

Joshua Galen Frank Jr., Opelousas, for Chandler Elliot Dunbar.

Before DOUCET, C.J., and THIBODEAUX and PETERS, JJ.

DOUCET, Chief Judge.

Defendant, Chandler Elliot Dunbar, was charged by an indictment filed in Lafayette Parish on May 21, 1992 with one count each of second degree murder, aggravated kidnapping, aggravated rape, and aggravated oral sexual battery. At arraignment held on June 17, 1992, the state amended the aggravated kidnapping charge to second degree kidnapping, and defendant entered a plea of not guilty to the charge.[1] On November 15, 1993, defendant filed a Motion to Quash the indictment based on double jeopardy. Although defendant's Motion to Quash was granted with respect to the second degree kidnapping charge, the court denied the motion with respect to the remaining charges. At the hearing held on November 15 and 16, 1993, the state announced that it would not try the defendant on the charge of aggravated oral sexual battery along with the charges of second degree murder and aggravated rape, since the charge of aggravated oral sexual battery is not the same mode of trial as the other two charges.[2] Defendant applied for writs with this court because of the denial of his Motion to Quash on the aggravated rape, second degree murder, and aggravated oral sexual battery charges, but the writ was denied on November 18, 1993 in an unpublished opinion bearing docket number K93-1482.

After trial by jury on the second degree murder and aggravated rape charges, defendant was found guilty of manslaughter and aggravated rape. On March 24, 1994, defendant was sentenced to life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence for his aggravated rape conviction, and twenty-one (21) years at hard labor for his manslaughter conviction. The sentences were ordered to run consecutively to each other and consecutively to defendant's sentence in St. Landry Parish.

Although defendant appeals from his convictions in Lafayette Parish, defendant's convictions in St. Landry Parish are factually related. In St. Landry Parish, defendant was charged by two separate indictments, returned on May 15, 1992, with one count of *431 aggravated rape and one count of second degree kidnapping being on one indictment, and one count of aggravated oral sexual battery being on the other indictment. On June 24 and 25, 1993, defendant was tried in St. Landry Parish on the charges of aggravated rape and second degree kidnapping. Defendant was found guilty of second degree kidnapping and not guilty of aggravated rape.

Defendant now appeals his Lafayette Parish conviction and sentence, alleging two assignments of error.

FACTS:

On May 1, 1992, at approximately 10:20 p.m., the defendant occupied a vehicle in Lafayette Parish along with three other passengers. Defendant and one of the passengers, Jesse Muse, began to struggle over defendant's gun. Several shots were fired, two of which struck Mr. Muse. Mr. Muse died as a result of the gunshot wounds. As the shots were being fired, Edwin Devillier, the driver of the vehicle, fled from the vehicle, leaving his girlfriend, the defendant, and Mr. Muse in the car. The defendant then jumped in the driver's seat and drove away from the scene with Mr. Devillier's girlfriend, Molly Gooch, and Mr. Muse in the car. Ms. Gooch testified the defendant held a gun to her head, refusing to let her leave.

Ms. Gooch testified that while the defendant drove away from the Lafayette area towards Opelousas, he ordered her to take off her pants and to perform oral sex on him, all the while holding his gun to her head to make her comply with his orders. Outside the city limits of Lafayette, but within the Parish of Lafayette, the defendant raped Ms. Gooch while continuing to hold her at gun point. Defendant then drove to Opelousas, where, according to Ms. Gooch, she was raped again. Following the rape in St. Landry Parish, the defendant fled the scene on foot and Ms. Gooch ran for help. Thereafter, defendant was arrested by the Opelousas Police Department and booked with the charge of aggravated rape.

ERRORS PATENT

La.Code Crim.P. art. 920 provides the scope of review on appeal, as follows:

The following matters and no others shall be considered on appeal:

(1) An error designated in the assignment of errors; and
(2) An error that is discoverable by a mere inspection of the pleadings and proceedings and without inspection of the evidence.

In accordance with this article, all appeals are reviewed by the court for errors patent on the face of the record. After a review of the record, we find there are three errors patent.

First, defendant was not given credit for time served. La.Code Crim.P. art. 880 provides that when imposing sentence the court shall give the defendant credit toward service of his sentence for time spent in actual custody prior to the imposition of sentence. The record indicates the trial court did not do so. La.Code Crim.P. art. 882(A) mandates this court amend the sentences to reflect that the defendant is given credit for time served prior to the execution of the sentences. Resentencing is not required; however, this case must be remanded with orders to the district court to amend the commitment and minute entry of the sentences to reflect that the defendant is given credit for time served. State v. Moore, 93-1632 (La.App. 3 Cir. 5/4/94), 640 So.2d 561.

Second, the record reflects that defendant was not notified of the three year prescriptive period for filing post conviction relief at the time of sentencing as required by La. Code Crim.P. art. 930.8. This defect has no bearing on whether the sentence is excessive and thus is not grounds to reverse the sentence or remand the case for resentencing. La.Code Crim.P. art. 921. The three year prescriptive period does not begin to run until the judgment is final under La.Code Crim.P. arts. 914 or 922, so prescription is not yet running. Apparently, the purpose of the notice of Article 930.8(C) is to inform defendant of the prescriptive period in advance; thus, the district court is further directed to inform the defendant of the provisions of Article 930.8 by sending appropriate written notice to the defendant within ten days of the rendition of this opinion and to file written proof that the defendant received *432 the notice in the record of the proceedings. See State v. Fontenot, 616 So.2d 1353 (La. App. 3 Cir.), writ denied, 623 So.2d 1334 (La.1993).

Finally, we note defendant's indictment contains an error in the citation of a statute. The indictment states the defendant is charged with one count of second degree murder in violation of La.R.S. 14:31. The correct statute citation for second degree murder is La.R.S. 14:30.1. This type of error is addressed by La.Code Crim.P. art. 464:

The indictment shall be a plain, concise, and definite written statement of the essential facts constituting the offense charged. It shall state for each count the official or customary citation of the statute which the defendant is alleged to have violated. Error in the citation or its omission shall not be ground for dismissal of the indictment or for reversal of a conviction if the error or omission did not mislead the defendant to his prejudice.

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Cite This Page — Counsel Stack

Bluebook (online)
657 So. 2d 429, 1995 WL 323266, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-dunbar-lactapp-1995.