KM-0022-0235 Nonprecedential Remanded with instructions Processed

State of Louisiana v. Terry Lemaire

Louisiana Court of Appeal, Third Circuit · Filed November 23, 2022

Authorities cited

Identified automatically; this list may not be exhaustive.

State v. Harvey 644 So. 2d 371
State v. Anderson 364 So. 2d 566
State v. Morris 328 So. 2d 65
State v. Burton 74 So. 3d 253
State v. Bowden 106 So. 3d 308
State v. Hamilton 370 So. 2d 874

Opinion text

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA

COURT OF APPEAL, THIRD CIRCUIT

22-235

STATE OF LOUISIANA

VERSUS

TERRY LEMAIRE
**********

APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF VERMILION, NO. 65839
HONORABLE THOMAS JAMES FREDERICK, DISTRICT JUDGE

**********

GARY J. ORTEGO
JUDGE

**********

Court composed of John E. Conery, D. Kent Savoie, and Gary J. Ortego, Judges.

APPEAL DISMISSED; REMANDED WITH INSTRUCTIONS.

Donald Dale Landry
District Attorney, 15th Judicial District
P. O. Box 3306
Lafayette, LA 70502
(337) 232-5170
COUNSEL FOR APPELLEE:
State of Louisiana

Holli Ann Herrle-Castillo
Louisiana Appellate Project
P. O. Box 2333
Marrero, LA 70073
(504) 345-2801
COUNSEL FOR DEFENDANT/APPELLANT:
Terry LeMaire

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Ortego, Judge.

Due to the procedural posture of this appeal, the underlying facts are neither

known nor relevant. This court received a letter from the Louisiana Appellate

Project on February 28, 2022, indicating attorney Holli Herrle-Castillo had been

appointed to represent Defendant on appeal, which was to be lodged with this court

by June 2, 2022. On April 13, 2022, counsel for Defendant filed a “Notice of Death

of Client, Motion to Vacate the Judgment of Conviction and Abate Prosecution Ab

Initio in the Unlodged Appeal.” Counsel subsequently provided a letter from the

Iberville Parish Coroner stating Defendant died at Elayn Hunt Correctional Center

on February 17, 2022. Louisiana Revised Statutes 44:19(E)(1) provides that “[a]

fact of death letter is a written statement attesting to the fact of death, which shall

constitute proof of death for all purposes . . . .”

Counsel’s motion cites State v. Harvey, 94-343 (La. 10/20/94), 644 So.2d 371;

State v. Anderson, 364 So.2d 566 (La.1978) (per curiam); State v. Morris, 328 So.2d

65 (La.1976), overruled by State v. Gleason, 21-1788 (La. 11/10/22), ___ So.3d ___;

State v. Burton, 46,552 (La.App. 2 Cir. 9/21/11), 74 So.3d 253 (per curiam); 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) (per curiam), in support of her assertion that the conviction

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

On November 10, 2022, the supreme court held:

The abatement ab initio doctrine is obsolete and inconsistent
with our positive law. To abate a conviction would be as to say there
has been no crime and there is no victim. Accordingly, we abandon the
doctrine and hold that when a defendant dies during the pendency of an
appeal, the appeal shall be dismissed and the trial court shall enter a
notation in the record that the conviction removed the defendant’s
presumption of innocence but was neither affirmed nor reversed on
appeal due to the defendant’s death.

State v. Gleason, 21-1788, p. 4 (La. 11/10/22), ___ So.3d ___, ___.

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Accordingly, Defendant’s appeal is dismissed, and the trial court is ordered to

enter a notation in the record that the conviction removed Defendant’s presumption

of innocence but it was neither affirmed nor reversed on appeal due to Defendant’s

death.

APPEAL DISMISSED; REMANDED WITH INSTRUCTIONS.

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