State of Louisiana v. Russell McCutheon

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA

COURT OF APPEAL, THIRD CIRCUIT

KA20-267

STATE OF LOUISIANA

VERSUS

RUSSELL McCUTHEON

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APPEAL FROM THE
SIXTEENTH JUDICIAL DISTRICT COURT
PARISH OF IBERIA, NO. 16-0734
HONORABLE VINCENT JOSEPH BORNE, DISTRICT JUDGE

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VAN H. KYZAR

JUDGE

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Court composed of John D. Saunders, Elizabeth A. Pickett and Van H. Kyzar,
Judges.

CONVICTIONS AND SENTENCES
VACATED. PROSECUTION ABATED
FROM INCEPTION.

Sherry Watters
Louisiana Appellate Project
P. O. Box 58769
New Orleans, LA 70158-8769
(504) 723-0284
COUNSEL FOR DEFENDANT/APPELLANT:
Russell McCutheon

M. Bofill Duhe
District Attorney, 16th JD
W. Claire Howington
Assistant District Attorney, 16th JD
300 Iberia St., #200
New Iberia, LA 70560
(337) 369-4420
COUNSEL FOR PLAINTIFF/APPELLEE:
State of Louisiana

KYZAR, Judge.

Defendant, Russell McCutheon, was charged by bill of information with

aggravated battery, a violation of La.R.S. 14:34, illegal possession of stolen

firearms, a violation of La.R.S. 14:69.1, possession of a firearm or carrying a

concealed weapon by a convicted felon, a violation of La.R.S. 14:95.1, and illegal

use of weapons or dangerous instrumentalities, a violation of La.R.S. 14:94.

Defendant subsequently entered an open-ended guilty plea to aggravated battery

and possession of a firearm by a convicted felon in exchange for the State’s

dismissal of the remaining charges and agreement not to file a habitual offender

bill. Defendant was subsequently sentenced to serve ten years at hard labor for

each offense with the sentences to run concurrently. He filed a motion to

reconsider sentence, which was denied by the trial court. On October 4, 2018,

Defendant filed a motion for appeal, which was granted by the trial court. The

record was lodged with this Court on May 29, 2020.

On March 20, 2020, Defendant died. As a result of the death of Defendant,

the State filed a “Motion to Vacate Convictions and Sentences Upon Notice of

Defendant’s Death” on August 7, 2020, and Defendant’s attorney filed a “Motion

for Abatement Ab Initio” on August 13, 2020. Subsequently the State provided

this Court with a copy of Defendant’s death certificate.1

The State’s and defense counsel’s motions cite cases such as State v.

Bowden, 12-1352 (La.App. 3 Cir. 1/9/13), 106 So.3d 308, and State v. Hamilton,

370 So.2d 874 (La.1979), in support of their assertion that the convictions and

sentences should be vacated and the proceedings abated from their inception.

Examination of the law and cited jurisprudence confirms that relief is due based on
1
The State notes the certificate spells Defendant’s last name as “McCutcheon” instead of
“McCutheon,” but otherwise, the information on the death certificate, such as address, date of
birth, and social security number, match the information in the State’s file.

the facts in this case. Accordingly, Defendant’s convictions and sentences are

vacated and all proceedings in this prosecution are abated from their inception.

CONVICTIONS AND SENTENCES VACATED; PROSECUTION ABATED

FROM INCEPTION.

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