88-KA-1906 Precedential Processed

State v. Smith

Louisiana Court of Appeal, Fourth Circuit · Filed November 16, 1989 · 553 So. 2d 934

Cited by

State v. Johnson 182 So. 3d 1039 La. Ct. App. 2d Cir. 2015
State v. Andrews 61 So. 3d 121 La. Ct. App. 1st Cir. 2011
State v. Melancon 826 So. 2d 633 La. Ct. App. 4th Cir. 2002
State v. Powell 779 So. 2d 67 La. Ct. App. 1st Cir. 2001
State v. Allen 777 So. 2d 1252 La. Ct. App. 4th Cir. 2001
State v. Anderson 753 So. 2d 321 La. Ct. App. 4th Cir. 2000
State v. Pineyro 631 So. 2d 1203 La. Ct. App. 1st Cir. 1994
State v. White 621 So. 2d 884 La. Ct. App. 4th Cir. 1993
State v. Jackson 614 So. 2d 783 La. Ct. App. 2d Cir. 1993
State v. Smith 600 So. 2d 919 La. Ct. App. 4th Cir. 1992
State v. Gray 562 So. 2d 1171 La. Ct. App. 1st Cir. 1990

Authorities cited

Identified automatically; this list may not be exhaustive.

State v. Magee 496 So. 2d 562
State v. Randolph 409 So. 2d 554

Opinion text

553 So.2d 934 (1989) STATE of Louisiana v. Ronald L. SMITH. No. 88-KA-1906. Court of Appeal of Louisiana, Fourth Circuit. November 16, 1989. Harry F. Connick, Dist. Atty., Beryl McSmith, Asst. Dist. Atty., New Orleans, for appellee. Dwight Doskey, Orleans Indigent Defender Program, New Orleans, for appellant. Before SCHOTT, BYRNES and WILLIAMS, JJ. BYRNES, Judge. Defendant, Ronald Smith, was charged with the crimes of armed robbery and attempted first degree murder. LA.R.S. 14:64; 14:27.D(3). A jury found him guilty as charged on both counts. Defendant filed a motion for a new trial and motion for appeal on March 16, 1988. On March 31, 1988 he was sentenced to serve thirty-five years at hard labor on each count, with the sentences to run concurrently. On the State's motion, the sentence was amended and it was ordered that the sentence be served without the benefit of probation, parole or suspension of sentence. In this appeal Smith relies upon six assignments of error in seeking a reversal of his conviction and sentence. [1] Because of an error patent on the face of the record we must vacate the defendant's *935 sentence and remand this case to the trial court. La.C.Cr.P. Art. 920. We, therefore, do not comment on the merits of the defendant's arguments on the errors assigned. Louisiana Code of Criminal Procedure Article 853 requires that the trial court rule on the merits of an application for a new trial before imposing sentence on the defendant. See: State v. Magee, 496 So.2d 562 (La.App. 1st Cir. 1986) citing State v. Randolph, 409 So.2d 554 (La. 1982) on rehearing. The record reflects that a motion for a new trial was filed on March 16, 1988 and hearing on the motion was to be conducted on March 24, 1988. However, there is no indication in the record that the hearing was conducted or the matter was ruled upon, on that date or any subsequent date. The failure of the trial court to rule on this motion constitutes an error patent on the face of the record. [2] Accordingly, we vacate the defendant's sentence and remand this case to the district court for a ruling on the defendant's motion for a new trial. We reserve unto the defendant the right to appeal his conviction and sentence at a later date if necessary. SENTENCE VACATED AND CASE REMANDED. NOTES [1] Of the six assignments, four are pro se assignments of error. [2] We also note another error patent on the face of the record in that the trial judge in amending the defendant's sentence did not specify that only the sentence for armed robbery was to be served without benefit of probation, parole or suspension of sentence. LA.R.S. 14:64.