STATE OF LOUISIANA v. MICHAEL ANTHONY SHORT (2023)

CHEHARDY, C.J.

On February 14, 2020, the Jefferson Parish District Attorney filed a bill of information charging defendant, Michael Anthony Short, with one count of introducing or possessing contraband in the form of a makeshift weapon into the Jefferson Parish Correctional Center, a violation of La. R.S. 14:402. Defendant pled not guilty. On April 21, 2022, a six-person jury unanimously found defendant guilty as charged.

On April 27, 2022, before sentencing, defendant filed a Motion for New Trial and a Motion for Post-Verdict Judgment of Acquittal. At the sentencing hearing later the same day, the trial court sentenced defendant to ten years in the Department of Corrections.¹ Immediately after sentencing, the trial court denied defendant's motion for new trial and motion for post-verdict judgment of acquittal.² Defendant objected, and on May 2, 2022, he filed a Motion for Reconsideration of Sentence and a Motion for Appeal. On May 4, 2022, the trial court denied defendant's motion for reconsideration and granted his motion for appeal.³

Defendant's sole assignment of error on appeal is that his sentence is constitutionally excessive.

Our review of the record reveals errors patent in conjunction with defendant's timely filed motion for new trial and motion for post-verdict judgment of acquittal, because the trial court denied these motions after imposing defendant's sentence on April 27, 2022.

La. C.Cr.P. art. 821(A) requires that a motion for post-verdict judgment of acquittal be made and disposed of before sentencing. State v. Christian, 05-635 (La. App. 5 Cir. 2/3/06), 924 So.2d 266, 267. Similarly, La. C.Cr.P. art. 853(A) provides that a motion for new trial generally must be filed and disposed of before sentencing. State v. Barnes, 11-80 (La. App. 5 Cir. 12/13/11), 92 So.3d 9, 12, writ denied, 12-951 (La. 11/9/12), 100 So.3d 828. See also State v. Aguliar-Benitez, 16-336 (La. App. 5 Cir. 12/7/16), 206 So.3d 472, 473 (vacating the trial court's denial of the defendant's motion for new trial, which was denied after his sentence was imposed); State v. Common, 10-996 (La. App. 5 Cir. 11/15/11), 78 So.3d 237, 245, writ denied, 11-2779 (La. 9/28/12), 98 So.3d 825 (vacating an enhanced sentence, remanding for a hearing on the motions for post-verdict judgment of acquittal and new trial, and for resentencing).

Given the trial court's procedural error, we pretermit discussion of defendant's assignment of error regarding the constitutionality of his sentence. We vacate defendant's sentence, vacate the trial court's rulings on defendant's motions, and remand for the trial court to rule on defendant's motion for post-verdict judgment of acquittal, his motion for new trial, and for resentencing.⁴ Defendant's right to appeal any adverse ruling on his motions, or his new sentence, is preserved.

SENTENCE VACATED, CASE REMANDED

FIFTH CIRCUIT

101 DERBIGNY STREET (70053)

POST OFFICE BOX 489

GRETNA, LOUISIANA 70054

www.fifthcircuit.org

SUSAN M. CHEHARDY CHIEF JUDGE

FREDERICKA H. WICKER JUDE G. GRAVOIS MARC E. JOHNSON ROBERT A. CHAISSON STEPHEN J. WINDHORST HANS J. LILJEBERG JOHN J. MOLAISON, JR. JUDGES

CURTIS B. PURSELL CLERK OF COURT

SUSAN S. BUCHHOLZ CHIEF DEPUTY CLERK

LINDA M. WISEMAN FIRST DEPUTY CLERK

MELISSA C. LEDET DIRECTOR OF CENTRAL STAFF

(504) 376-1400

(504) 376-1498 FAX

NOTICE OF JUDGMENT AND CERTIFICATE OF DELIVERY

I CERTIFY THAT A COPY OF THE OPINION IN THE BELOW-NUMBERED MATTER HAS BEEN DELIVERED IN ACCORDANCE WITH UNIFORM RULES - COURT OF APPEAL, RULE 2-16.4 AND 2-16.5 THIS DAY FEBRUARY 27, 2023 TO THE TRIAL JUDGE, CLERK OF COURT, COUNSEL OF RECORD AND ALL PARTIES NOT REPRESENTED BY COUNSEL, AS LISTED BELOW:

CURTIS B. PURSELL CLERK OF COURT

22-KA-263

E-NOTIFIED

24TH JUDICIAL DISTRICT COURT (CLERK)

HONORABLE FRANK A. BRINDISI (DISTRICT JUDGE)

MONIQUE D. NOLAN (APPELLEE)

THOMAS J. BUTLER (APPELLEE)

BERTHA M. HILLMAN (APPELLANT)

MAILED

HONORABLE PAUL D. CONNICK, JR.

(APPELLEE)

DISTRICT ATTORNEY

GABRIELLE HOSLI (APPELLEE)

KRISTEN LANDRIEU (APPELLEE)

ASSISTANT DISTRICT ATTORNEYS

TWENTY-FOURTH JUDICIAL DISTRICT

200 DERBIGNY STREET

GRETNA, LA 70053

FOOTNOTES

1.   This Court has previously held that when the trial judge states that the defendant is sentenced to the “Department of Corrections,” the sentence is necessarily at hard labor. State v. Jamison, 17-49 (La. App. 5 Cir. 5/17/17), 222 So.3d 908, 909 n.2.

2.   The trial court signed the orders denying both motions on May 2, 2022.

3.   It is not clear from the record whether the trial court denied defendant's motion for reconsideration of sentence before or after ruling on defendant's motion for appeal. Regardless of the order of the trial court's rulings, the court maintained jurisdiction to rule on the timely filed motion to reconsider sentence under La. C.Cr.P. art. 916(3), which provides in pertinent part:The jurisdiction of the trial court is divested and that of the appellate court attaches upon the entering of the order of appeal. Thereafter, the trial court has no jurisdiction to take any action except as otherwise provided by law and to:***(3) Correct an illegal sentence or take other appropriate action pursuant to a properly made or filed motion to reconsider sentence.

4.   At the time of sentencing, the trial court also failed to advise defendant of his right to post-conviction relief pursuant to La. C.Cr.P. art. 930.8. The trial court may properly advise defendant if he is resentenced.

SUSAN M. CHEHARDY CHIEF JUDGE