State v. Grissom

Louisiana Court of Appeal

State v. Grissom

485 So. 2d 214, 1986 La. App. LEXIS 6317

CourtLouisiana Court of Appeal

DecidedFebruary 26, 1986

DocketNo. 17683-KA

StatusPublished

This text of 485 So. 2d 214 (State v. Grissom) 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. Grissom, 485 So. 2d 214, 1986 La. App. LEXIS 6317 (La. Ct. App. 1986).

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Opinion

SEXTON, Judge.

Defendant, Oliver Grissom, was convicted by a jury of the offense of aggravated rape and sentenced on that charge. On the first appeal of this conviction, this Court found merit in the defendant’s contention that there was insufficient evidence to prove penetration, an essential element of the offense. However, the record contained sufficient evidence to convict the defendant of the lesser included offense of attempted aggravated rape and the case was remanded to the trial court with instructions to enter a judgment of conviction for the offense of attempted aggravated rape and to impose a sentence on that offense. State v. Grissom, 467 So.2d 858 (La.App. 2d Cir.1985). Following the remand, the defendant was sentenced to a term of fifty years imprisonment at hard labor to run consecutively with any other sentence being served. The defendant now appeals for the second time subsequent to his conviction on the basis of two assigned errors. We affirm.

The defendant’s assignments were initially presented to the trial court by way of a “Motion for Arrest of Judgment and Motion for New Trial,” which was denied. As we appreciate the defendant’s position, they present the single contention that the trial court had no jurisdiction to sentence the defendant on the lesser charge of attempted aggravated rape because the defendant had not pled guilty to that offense nor had he been convicted of that offense by a jury. The defendant thus contends that this court was without authority to reduce the original conviction to the lesser included offense of attempted aggravated rape when we found a lack of an essential element of the offense for which the defendant was tried.

These constitutional arguments have been considered and rejected by our Supreme Court. State v. Byrd, 385 So.2d 248 (La.1980). Moreover, the procedure was codified by Act. No. 144 of 1982 as LSA-C. Cr.P. art. 821 E. These assignments therefore lack merit. The conviction and sentence are affirmed.

AFFIRMED.

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SEXTON, Judge.

Defendant, Oliver Grissom, was convicted by a jury of the offense of aggravated rape and sentenced on that charge. On the first appeal of this conviction, this Court found merit in the defendant’s contention that there was insufficient evidence to prove penetration, an essential element of the offense. However, the record contained sufficient evidence to convict the defendant of the lesser included offense of attempted aggravated rape and the case was remanded to the trial court with instructions to enter a judgment of conviction for the offense of attempted aggravated rape and to impose a sentence on that offense. State v. Grissom, 467 So.2d 858 (La.App. 2d Cir.1985). Following the remand, the defendant was sentenced to a term of fifty years imprisonment at hard labor to run consecutively with any other sentence being served. The defendant now appeals for the second time subsequent to his conviction on the basis of two assigned errors. We affirm.

The defendant’s assignments were initially presented to the trial court by way of a “Motion for Arrest of Judgment and Motion for New Trial,” which was denied. As we appreciate the defendant’s position, they present the single contention that the trial court had no jurisdiction to sentence the defendant on the lesser charge of attempted aggravated rape because the defendant had not pled guilty to that offense nor had he been convicted of that offense by a jury. The defendant thus contends that this court was without authority to reduce the original conviction to the lesser included offense of attempted aggravated rape when we found a lack of an essential element of the offense for which the defendant was tried.

These constitutional arguments have been considered and rejected by our Supreme Court. State v. Byrd, 385 So.2d 248 (La.1980). Moreover, the procedure was codified by Act. No. 144 of 1982 as LSA-C. Cr.P. art. 821 E. These assignments therefore lack merit. The conviction and sentence are affirmed.

AFFIRMED.

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Bluebook (online)

485 So. 2d 214, 1986 La. App. LEXIS 6317, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-grissom-lactapp-1986.

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