State v. Morris

614 So. 2d 180, 1993 WL 25672
CourtLouisiana Court of Appeal
DecidedFebruary 3, 1993
DocketCR 92-574
StatusPublished
Cited by13 cases

This text of 614 So. 2d 180 (State v. Morris) 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. Morris, 614 So. 2d 180, 1993 WL 25672 (La. Ct. App. 1993).

Opinion

614 So.2d 180 (1993)

STATE of Louisiana, Plaintiff-Appellee,
v.
John Leon MORRIS, Defendant-Appellant.

No. CR 92-574.

Court of Appeal of Louisiana, Third Circuit.

February 3, 1993.

Guy R. Smith, Leesville, for defendant-appellant.

*181 Mark Kramar, Asst. Dist. Atty., Leesville, for plaintiff-appellee.

Before LABORDE, THIBODEAUX and WOODARD, JJ.

THIBODEAUX, Judge.

The defendant was charged with four offenses arising out of the theft of a truck from a Leesville automobile dealership. On January 14, 1992, after trial by a six-person jury defendant was acquitted of one count of theft but convicted of the remaining three counts: simple burglary, a violation of LSA-R.S. 14:62; unauthorized use of a movable valued over one thousand dollars, a violation of LSA-R.S. 14:68; and simple criminal damage to property valued under five hundred dollars, a violation of LSA-R.S. 14:56.

A presentence investigation report was ordered and defendant sentenced on March 20, 1992. For count one, simple burglary, defendant was sentenced to eight (8) years at hard labor. For count two, unauthorized use of a movable, defendant was sentenced to two (2) years at hard labor. For count three, simple criminal damage to property, defendant was sentenced to six (6) months in the parish jail. All three sentences were ordered to run concurrently to each other, but consecutively to another sentence defendant was serving. At the time of the commission of the crimes, defendant was on parole for a prior armed robbery conviction. His parole was automatically revoked as a result of these convictions, and defendant was serving the remaining five (5) years out of the original ten (10) year sentence.

Defendant appeals and assigns as errors: excessive sentence; insufficiency of the evidence; and a request for error patent review. After finding an error patent which exists in the record to be harmless and the defendant's assignments of errors lacking in merit, we affirm the convictions.

FACTS

On July 24, 1991, defendant joined several friends for a night of drinking beer and playing cards. The group met at the home of Judy Brister and her live-in boyfriend, William Myers, which home was directly across the street from the McRae Ford dealership in Leesville, Louisiana. Also present with defendant at the Brister-Myers's home was Mike Tanner, Jason Gallion, and the two year old daughter of Judy Brister and William Myers.

Sometime after 8 p.m., the card game ended and defendant stepped outside. It was disputed whether Mike Tanner may have also gone outside, but the witnesses who testified all agreed that defendant was the only person outside when they heard the sound of glass breaking. Ms. Brister, Mr. Myers and Mr. Tanner went to the screen door and saw defendant crawling from the rear window into the cab of a new Ford truck. Defendant drove the truck into the front yard of the Brister-Myers's home.

Defendant then called out to Mike Tanner to help him hide the truck, but Mr. Tanner refused to get involved and Ms. Brister told defendant to leave. Defendant got out of the truck and used his bandana to wipe the writing, "$1,000 rebate," off of the windshield and then left.

William Myers and Mike Tanner saw defendant the next day. Defendant said he had hidden the truck off of Highway 467.

On July 27, 1991, Boyd Robertson noticed that a truck parked off of Highway 467 had remained there for several days and he stopped to investigate. He saw that the rear window was broken, that some blood was on the broken glass, that cut wires were exposed from the damaged dashboard and there was no tailgate on the truck. The police were notified and so was McRae Ford because its sales sticker was still on the truck's window.

At trial, Mark McRae of McRae Ford testified that defendant did not have consent to take the truck or to enter the truck. The costs to replace the parts stolen amounted to six hundred and ninety dollars ($690.00), the cost to repair and replace the rear window was eighty-nine dollars ($89.00), plus there was an additional cost for the labor to perform the repair of the damage and replacement of the parts.

*182 ERRORS PATENT

Article 464 of the Louisiana Code of Criminal Procedure provides:

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.

The bill of information charging defendant with simple criminal damage to property of over $500.00 but less than $50,000.00 does not give the statutory citation for the law which defendant is charged with violating. However, the bill of information does state the essential facts of the offense charged, that defendant did "commit simple criminal damage to vehicle belonging to McRae Ford Company with the damage amounting to over $500.00 but under $50,000.00 (A felony)." The defendant did not object to this omission nor did defendant claim surprise or prejudicial lack of notice. Therefore, this error is harmless. State v. Smith, 520 So.2d 1252, 1254 (La.App. 5th Cir.1988), writ denied, 523 So.2d 1320 (La. 1988), citing State v. Sims, 426 So.2d 148, 158 (La.1983).

ASSIGNMENT OF ERROR NO. 1

By his first assignment of error, defendant contends his sentence is excessive.

In regard to defendant's assignment of error, La.C.Cr.P. art. 881.1 provides in full:

A. (1) Within thirty days following the imposition of sentence or within such longer period as the trial court may set at sentence, the state or the defendant may make or file a motion to reconsider sentence.
(2) The motion shall be oral at the time of sentencing or in writing thereafter and shall set forth the specific grounds on which the motion is based.
B. If a motion is made or filed under Paragraph A of this Article, the trial court may resentence the defendant despite the pendency of an appeal or the commencement of execution of the sentence.
C. The trial court may deny a motion to reconsider sentence without a contradictory hearing.
D. Failure to make or file a motion to reconsider sentence or to include a specific ground upon which a motion to reconsider sentence may be based, including a claim of excessiveness, shall preclude the state or the defendant from raising an objection to the sentence or from urging any ground not raised in the motion on appeal or review.

A motion to reconsider was not filed. The defense counsel merely objected at sentencing and moved for appeal. The defendant is precluded from raising these assignments of error on appeal as he has failed to file a motion to reconsider sentence under the provisions set forth in La.C.Cr.P. art. 881.1. See, State v. Belsha, 608 So.2d 291 (La.App. 3d Cir.1992); State v. Trahan, 607 So.2d 1016 (La.App. 3d Cir.1992).

ASSIGNMENT OF ERROR NO. 2

By his second assignment of error, defendant contends the trial court erred in ordering the sentences imposed on March 30, 1992, to run consecutive to the remaining sentence defendant was serving for a prior armed robbery conviction.

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Cite This Page — Counsel Stack

Bluebook (online)
614 So. 2d 180, 1993 WL 25672, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-morris-lactapp-1993.