State Of Louisiana v. Brian Moser

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA

COURT OF APPEAL

FIRST CIRCUIT

NO. 2019 KA 0277

STATE OF LOUISIANA

VERSUS

BRIAN MOSER

Judgment Rendered:
SEP 2 7 2019

On Appeal from the
20th Judicial District Court,
Parish of West Feliciana, State of Louisiana
Trial Court No. 16- WFLN-302

The Honorable William G. Carmichael, Judge Presiding

Samuel C. D' Aquilla Attorneys for Appellant,
District Attorney The State of Louisiana
Stewart B. Hughes

Haley Major Green
Assistant District Attorneys
St. Francisville, Louisiana

Michael A. Fiser Attorney for Defendant/Appellee
Baton Rouge, Louisiana Brian Moser

BEFORE: WHIPPLE, C. J., GUIDRY AND CRAIN, JJ.

CRAIN, J.

The defendant, Brian Moser, pled nolo contendere to five counts of

misapplication of payments by a contractor. See La. R.S. 14: 202. ( R. 3, 40- 42).

The trial court sentenced the defendant on each count to six months in parish jail, to

be served consecutively. The trial court suspended the sentences and, for each count,

placed the defendant on supervised probation for a period of two years, conditioned

upon payment of restitution in an amount to be determined at a restitution hearing.

The trial court found the restitution amount not satisfactorily proven at the hearing;

therefore, no restitution was ordered. The trial court then indicated it wanted to

further consider the sentence and set another sentencing hearing. After that hearing,

the trial court sentenced the defendant to pay a fine of one thousand dollars plus

court costs or a jail term of ninety days in default of payment, clarifying that " any

prior discussion [ was] vacated." The State now appeals, arguing the trial court erred

in resentencing the defendant to terms different from the plea agreement and in

ordering no restitution.' Due to sentencing error, we vacate the sentence and remand

for resentencing.

PATENT ERROR

Pursuant to Louisiana Code of Criminal Procedure article 920( 2), this court

reviews all criminal appeals for errors discoverable by a mere inspection of the

pleadings and proceedings without inspection of the evidence. Here, the defendant' s

pleas resulted in five convictions; therefore, the trial court was required to impose

five separate sentences. See State v. Smith, 16- 1542, 2017WL2399027, * 2 ( La. App.

1 Cir. 6/ 2/ 17); State v. Soco, 94- 1099 (La. App. 1 Cir. 6/ 23/ 95), 657 So. 2d 603. The

trial court originally imposed a separate sentence on each count, but vacated those

Merrel A. Porche likewise pled nolo contendere to five counts of misapplication of
payments by a contractor and received the same sentence as the defendant. The state' s appeal of
Porche' s sentence is also pending before this court. See State v. Porche, 19- 0278 ( La. App. 1 Cir.
19), So. 3d `

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sentences and imposed a single sentence comprised of a $ 1, 000 fine or a 90 -day jail

term in default of payment. See La. Code Crim. Pro. art. 881 A. The single sentence

for five convictions is invalid. Thus, we vacate the sentence and remand for

resentencing. See Smith, 2017VVL2399027 at * 2; Soco, 657 So. 2d at 603; see also

State v. Kitts, 17- 0777 ( La. App. 1 Cir. 5/ 10/ 18), 250 So. 3d 939, 945- 46.

SENTENCE VACATED; REMANDED.

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