State v. Bowden

GENOVESE, Judge. _JjOn September 6, 2011, Defendant entered an Alford plea to the charges of aggravated burglary and aggravated assault on a police officer. Subsequently, on November 3, 2011, the sentencing court imposed a sentence of fifteen years at hard labor without designating to which offense the penalty applied. On June 12, 2012, Defendant filed a motion for appeal, and the trial court granted the out-of-time appeal on the same date. Thereafter, on July 22, 2012, Defendant died of natural causes at the Bogalusa Medical Center. The appeal record was lodged with this court on November 26, 2012. On December 10, 2012, defense counsel filed a “Motion to Vacate the Judgments of Conviction and Abate Prosecution Ab Ini-tio ” with this court. Defense counsel asserts that, under the cited jurisprudence, a defendant’s convictions and sentences should be vacated and the prosecution voided ab initio when that defendant dies during the pendency of his appeal. State v. Harvey, 94-343, p. 1 (La.10/20/94), 644 So.2d 371, 371 (citing State v. McClow, 364 So.2d 566 , 566 (La.1978); State v. Morris, 328 So.2d 65, 67 (La.1976)); State v. Burton, 46,552, p. 1 (La.App. 2 Cir. 9/21/11), 74 So.3d 253, 253-54 . Examination of the law and cited jurisprudence confirms that relief is due based on the facts in this case. Accordingly, Defendant’s convictions and sentence are vacated and all proceedings in this prosecution are abated from their inception. CONVICTIONS AND SENTENCE VACATED; PROSECUTION ABATED FROM INCEPTION.