FREDERICKA HOMBERG WICKER JUDGE

Similar documents
STEPHEN J. WINDHORST JUDGE

ROBERT A. CHAISSON JUDGE

ROBERT A. CHAISSON JUDGE

FEBRUARY 11,2015 STEPHEN J. WINDHORST JUDGE. Panel composed ofjudges Jude G. Gravois, Robert A. Chaisson and Stephen J. Windhorst

December 27, 2018 STEPHEN J. WINDHORST JUDGE. Panel composed of Judges Marc E. Johnson, Stephen J. Windhorst, and Hans J.

Qtourt of ~cm FIFTH CIRCUIT STATE OF LOUISIANA. SUSAN S. BUCHHOLz FIRST DEPUTY CLERK STEPHEN J. WINDHORST HANS J. LIUEBERG 101 DERBIGNY STREET (70053)

FREDERICKA HOMBERG WICKER JUDGE

FREDERICKA HOMBERG WICKER JUDGE

SUSAN M. CHEHARDY CHIEF JUDGE

STEPHEN J. WINDHORST JUDGE

STEPHEN J. WINDHORST JUDGE

MARC E. JOHNSON JUDGE

February 08, 2017 HANS J. LILJEBERG JUDGE. Panel composed of Robert M. Murphy, Stephen J. Windhorst, and Hans J. Liljeberg

February 06, 2019 ROBERT A. CHAISSON JUDGE. Panel composed of Judges Fredericka Homberg Wicker, Robert A. Chaisson, and Hans J.

HANS J. LILJEBERG JUDGE

ROBERT M. MURPHY JUDGE

JOHN J. MOLAISON, JR. JUDGE

June 29, 2017 FREDERICKA HOMBERG WICKER JUDGE. Panel composed of Judges Susan M. Chehardy, Fredericka Homberg Wicker, and Jude G.

HANS J. LILJEBERG JUDGE

STEPHEN J. WINDHORST JUDGE

May 16, 2018 MARION F. EDWARDS, JUDGE PRO TEMPORE JUDGE

HANS J. LILJEBERG JUDGE

JOHN J. MOLAISON, JR. JUDGE

HANS J. LILJEBERG JUDGE

ROBERT M. MURPHY JUDGE

SUSAN M. CHEHARDY CHIEF JUDGE

SUSAN M. CHEHARDY CHIEF JUDGE

ROBERT A. CHAISSON JUDGE

ROBERT A. CHAISSON JUDGE

JOHN J. MOLAISON, JR. JUDGE

ROBERT A. CHAISSON JUDGE

JUDE G. GRAVOIS JUDGE

HANS J. LILJEBERG JUDGE

HANS J. LILJEBERG JUDGE

ROBERT A. CHAISSON JUDGE

r)' j7 STEPHEN J. WINDHORST JUDGE FIFTH CIRCUIT VERSUS STATE OF LOUISIANA

JUDE G. GRAVOIS JUDGE

JUDE G. GRAVOIS JUDGE

MARC E. JOHNSON JUDGE

STEPHEN J. WINDHORST JUDGE

HANS J. LILJEBERG JUDGE

August 29, 2018 ELLEN SHIRER KOVACH JUDGE. Panel composed of Judges Susan M. Chehardy, Marc E. Johnson, and Ellen Shirer Kovach, Pro Tempore

C'OtHfI Of.. Ff'rAL FIFTH CIRCUIT

November 07, 2018 JOHN J. MOLAISON, JR. JUDGE. Panel composed of Judges Jude G. Gravois, Robert A. Chaisson, and John J. Molaison, Jr.

ROBERT M. MURPHY JUDGE

SUSAN M. CHEHARDY CHIEF JUDGE

STEPHEN J. WINDHORST JUDGE

FREDERICKA HOMBERG WICKER JUDGE

ROBERT A. CHAISSON JUDGE

MARC E. JOHNSON JUDGE

October 25, 2017 MARC E. JOHNSON JUDGE. Panel composed of Judges Jude G. Gravois, Marc E. Johnson, and Robert A. Chaisson

ON APPEAL FROM THE FIRST PARISH COURT PARISH OF JEFFERSON, STATE OF LOUISIANA NO , DIVISION "A" HONORABLE REBECCA M. OLIVIER, JUDGE PRESIDING

HANS J. LILJEBERG JUDGE

JOHN J. MOLAISON, JR. JUDGE

ROBERT A. CHAISSON JUDGE

FREDERICKA HOMBERG WICKER JUDGE

MARC E. JOHNSON JUDGE

ROBERT M. MURPHY JUDGE

FREDERICKA HOMBERG WICKER JUDGE

STEPHEN J. WINDHORST JUDGE

MARC E. JOHNSON JUDGE

HANS J. LILJEBERG JUDGE Panel composed of Judges Robert M. Murphy, Stephen J. Windhorst, and Hans J. Liljeberg

**THIS OPINION HAS BEEN DESIGNATED AS NOT FOR PUBLICATION**

FREDERICKA HOMBERG WICKER JUDGE

HANS J. LILJEBERG JUDGE

STEPHEN J. WINDHORST JUDGE Panel composed of Judges Susan M. Chehardy, Jude G. Gravois and Stephen J. Windhorst

ROBERT A. CHAISSON JUDGE Panel composed ofjudges Clarence E. McManus, Fredericka Homberg Wicker, and Robert A. Chaisson

SUSAN M. CHEHARDY CHIEF JUDGE

MARC E. JOHNSON JUDGE

August 06, :57:01 pm SUSAN M. CHEHARDY CHIEF JUDGE

June 28, 2018 ROBERT A. CHAISSON JUDGE. Panel composed of Judges Jude G. Gravois, Robert A. Chaisson, and Hans J. Liljeberg

April 11, 2018 FREDERICKA HOMBERG WICKER JUDGE. Panel composed of Judges Susan M. Chehardy, Fredericka Homberg Wicker, and Hans J.

SUSAN M. CHEHARDY CHIEF JUDGE

HANS J. LILJEBERG JUDGE

JUDE G. GRAVOIS JUDGE

JUDE G. GRAVOIS JUDGE

ROBERT M. MURPHY JUDGE

NO. 18-CA-453 CHALANDER SMITH FIFTH CIRCUIT VERSUS COURT OF APPEAL

October 15, Susan Buchholz First Deputy Clerk

JUDE G. GRAVOIS JUDGE

SUSAN M. CHEHARDY CHIEF JUDGE

MARC E. JOHNSON JUDGE

FREDERICKA HOMBERG WICKER JUDGE

ROBERT A. CHAISSON JUDGE

MARC E. JOHNSON JUDGE

ROBERT A. CHAISSON JUDGE

-an n 1 ROBERT A. CHAISSON APPEAL DISMISSED NO. 15-CA-138 ST. JOHN THE BAPTIST PARISH SCHOOL BOARD FIFTH CIRCUIT VERSUS COURT OF APPEAL

December 07, 2016 ROBERT M. MURPHY JUDGE. Panel composed of Susan M. Chehardy, Robert M. Murphy, and Stephen J. Windhorst

ROBERT A. CHAISSON JUDGE

STEPHEN J. WINDHORST JUDGE

SUSAN M. CHEHARDY CHIEF JUDGE

FREDERICKA HOMBERG WICKER JUDGE

NOVEMBER 19, ROBERT M. MURPHY JUDGE - ~-~;l./,rl---t-t----~--- <~L~=~~~(

SUSAN M. CHEHARDY CHIEF JUDGE

~~CLERJ( Cheryl Quirk La n d ri o u

ON APPEAL FROM THE FIRST PARISH COURT PARISH OF JEFFERSON, STATE OF LOUISIANA NO , DIVISION "A" HONORABLE REBECCA M. OLIVIER, JUDGE PRESIDING

ROBERT A. CHAISSON JUDGE

ROBERT M. MURPHY JUDGE

.J)J-- CLERK Cheryl Quirk La udrieu . J..J~><---- FREDERICKA HOMBERG WICKER JUDGE VACATED AND REMANDED. COURT OF APPEAL FIFTH erne U1T

FREDERICKA HOMBERG WICKER JUDGE

Transcription:

VERSUS MARIO CHAVEZ NO. 16-KA-445 FIFTH CIRCUIT COURT OF APPEAL ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH OF JEFFERSON, NO. 14-5727, DIVISION "G" HONORABLE E. ADRIAN ADAMS, JUDGE PRESIDING December 07, 2016 FREDERICKA HOMBERG WICKER JUDGE Panel composed of Fredericka Homberg Wicker, Jude G. Gravois, and Hans J. Liljeberg SENTENCE VACATED; MATTER REMANDED FHW JGG HJL

COUNSEL FOR PLAINTIFF/APPELLEE, Paul D. Connick, Jr. Terry M. Boudreaux COUNSEL FOR DEFENDANT/APPELLANT, MARIO CHAVEZ Holli A. Herrle-Castillo

WICKER, J. Defendant, Mario Chavez, challenges his fifty-year sentence for his sexual battery upon a known juvenile conviction in violation of La. R.S. 14:43.1. Because we find the trial judge imposed an indeterminate sentence, we vacate defendant s sentence and remand for resentencing. STATEMENT OF THE CASE On October 17, 2014, the Jefferson Parish District Attorney filed a bill of information charging defendant with sexual battery upon a known juvenile under the age of thirteen, by touching the victim s genitals, in violation of La. R.S. 14:43.1. Defendant pled not guilty at arraignment and the matter proceeded to trial by jury. On April 14, 2016, a twelve-person jury found defendant guilty as charged. On April 21, 2016, defendant filed a motion for new trial, which the trial judge denied. On that same date, after defendant waived sentencing delays, the trial judge sentenced defendant to imprisonment at hard labor for fifty years with at least twenty-five years of the sentence to be served without benefit of parole, probation, or suspension of sentence. In this appeal, defendant s sole assignment of error is the claim that his fiftyyear sentence is excessive. ERRORS PATENT In each case, this Court reviews the record before us for errors patent, in accordance with La. C.Cr.P. art. 920 and State v. Oliveaux, 312 So.2d 337 (La. 1975), regardless of whether defendant makes such a request. State v. Bone, 12-34 (La. App. 5 Cir. 09/11/12), 107 So.3d 49, 68. The record in this case presents the following error patent requiring corrective action: The sentencing transcript reflects that the trial judge sentenced defendant to fifty years at hard labor and stated that at least 25 years shall be served without the benefit of parole, probation, or suspension of sentence. The commitment 1

reflects that the trial judge sentenced defendant to fifty years at hard labor with the first 25 years to be served without benefits. Where there is a conflict between the transcript and commitment, the transcript prevails. State v. Collins 07-0310 (La. 10/12/07), 966 So.2d 534, 535; State v. Lynch, 441 So.2d 732, 734 (La. 1983); State v. Collins, 09-283 (La. App. 5 Cir. 12/08/09), 30 So.3d 72, 87. A trial court must impose a determinate sentence. La.C.Cr.P. art. 879. Because the sentence imposed does not specify the period of time during which defendant is ineligible for parole, we find defendant s sentence is not fully determinate and must be set aside. See State v. Matthews, 94-2702 (La. 03/10/95), 650 So.2d 1170 (holding that [r]elator s sentence of forty years at hard labor, at least ten years of which must be served without parole eligibility, is vacated and this case is remanded to the district court with instructions to resentence relator to a determinate sentence which specifies the extent of parole disability in a fixed number of years ); State v. Harris, 11-253 (La. App. 5 Cir. 12/28/11), 83 So.3d 269, 284-85, citing State ex rel Dawson v. Ballard, 460 So.2d 595 (La. 1984) (holding [c]ase remanded for reimposition of a fully determinate sentence as to duration of period without benefit of parole ). Accordingly, defendant s sentence is vacated and this matter is remanded to the trial court for resentencing in compliance with La. R.S. 14:43.1. SENTENCE VACATED; MATTER REMANDED 2

SUSAN M. CHEHARDY CHIEF JUDGE CHERYL Q. LANDRIEU CLERK OF COURT FREDERICKA H. WICKER JUDE G. GRAVOIS MARC E. JOHNSON ROBERT A. CHAISSON ROBERT M. MURPHY STEPHEN J. WINDHORST HANS J. LILJEBERG JUDGES FIFTH CIRCUIT 101 DERBIGNY STREET (70053) POST OFFICE BOX 489 GRETNA, LOUISIANA 70054 www.fifthcircuit.org MARY E. LEGNON CHIEF DEPUTY CLERK SUSAN BUCHHOLZ 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 DECEMBER 7, 2016 TO THE TRIAL JUDGE, CLERK OF COURT, COUNSEL OF RECORD AND ALL PARTIES NOT REPRESENTED BY COUNSEL, AS LISTED BELOW: 16-KA-445 E-NOTIFIED 24TH JUDICIAL DISTRICT COURT (CLERK) HONORABLE E. ADRIAN ADAMS (DISTRICT JUDGE) TERRY M. BOUDREAUX (APPELLEE) HOLLI A. HERRLE-CASTILLO (APPELLANT) MAILED HON. PAUL D. CONNICK, JR. (APPELLEE) DISTRICT ATTORNEY TWENTY-FOURTH JUDICIAL DISTRICT 200 DERBIGNY STREET GRETNA, LA 70053