State v. Kennedy

140 So. 3d 1201, 2014 WL 1978107, 2014 La. App. LEXIS 1250

• Court: Louisiana Court of Appeal
• Decided: May 14, 2014
• Docket: No. 49,036-KA
• Status: Published

Opinion

DREW, J.

h Shawn Fitzgerald Kennedy urges only one issue in this appeal. He attacks the constitutionality of La. R.S. 14:95.1¹ as being contrary to Const. Art. I, § 11, which was amended in 2012.² Defendant’s challenge to the statute, however, is not properly before us.

The issue was not pled or litigated in the trial court, violating clear precedent. See State v. Hatton, 2007-2377 (La.7/1/08), 985 So.2d 709, and Vallo v. Gayle Oil Co., Inc., 94-1238 (La.11/30/94), 646 So.2d 859.³

In addition, the Louisiana Attorney General has never been served and has not yet participated in any way. See La. R.S. 13:4448; La. R.S. 49:257(0; La. C.C.P. art. 1880.

We must remand this case to the trial court for further proceedings.

DECREE

REMANDED.

1 . Possession of firearm or carrying concealed weapon by a person convicted of certain felonies

2 . The Louisiana Supreme Court is considering this same issue in the pending writ applications of State v. Taylor, 2014-0209, and State v. Eberhardt, 2013-2306.

3 .See also, State in Interest of D.W., 13-114 (La.App. 5 Cir. 9/18/13), 125 So.3d 1180, writ denied, 2013-2478 (La.4/4/14), 135 So.3d 639, 2014 WL 1423628.