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State v. Lambert

Court of Appeal of Louisiana, Fourth Circuit

February 25, 2015

STATE OF LOUISIANA
v.
JOSEPH M. LAMBERT

APPEAL FROM CRIMINAL DISTRICT COURT ORLEANS PARISH. NO. 519-880, SECTION " E" . Honorable Keva M. Landrum-Johnson, Judge.

Leon A. Cannizzaro, Jr., District Attorney, J. Bryant Clark, Jr., Assistant District Attorney, Parish of Orleans, New Orleans, LA, COUNSEL FOR APPELLANT/STATE OF LOUISIANA.

Colin Reingold, ORLEANS PUBLIC DEFENDERS, New Orleans, LA, COUNSEL FOR DEFENDANT/APPELLEE.

(Court composed of Chief Judge James F. McKay, III, Judge Daniel L. Dysart, Judge Sandra Cabrina Jenkins).

OPINION

Page 1098

[2014-1138 La.App. 4 Cir. 1] Daniel L. Dysart, Judge.

The State appeals a ruling of the trial court, which quashed one of the charges with which defendant, Joseph Lambert, was charged, specifically, one count of possession of a firearm or weapon by a felon, in violation of La. R.S. 14:95.1. For the reasons that follow, we affirm the ruling of the trial court.

BACKGROUND:

On April 14, 2014, the State of Louisiana charged Joseph M. Lambert, defendant, by bill of information, with: (1) one count of discharging a firearm during a violent crime, in violation of La. R.S. 14:94(F); (2) one count of aggravated assault with a firearm, in violation of La. R.S. 14:37.4; (3) one count of possession of a firearm or weapon by a felon, in violation of La. R.S. 14:95.1 (noting that the predicate offense was a 2008 conviction for attempted second degree murder); and (4) one count of armed robbery with a firearm, in violation of La. R.S. 14:64.3. The above mentioned charges resulted from incidents which occurred on January 18, 2014 and February 13, 2014.

According to the 2006 bill of information relative to the predicate crime, the State of Louisiana charged the defendant with one count of attempted second degree murder, in violation of La. R.S. 14:30.1(27). The State later amended the [2014-1138 La.App. 4 Cir. 2] charge to one count of attempted aggravated second degree battery. The defendant pleaded guilty to the charge in 2008, and was sentenced to seven years imprisonment at hard labor.

In the instant case, the defendant entered pleas of not guilty to all of the underlying charges. His counsel also filed various pre-trial motions. On June 26, 2014, the State amended the language of the bill of information for count 3, La. R.S. 14:95.1, to read " attempted aggravated second degree battery" to correctly reference the 2008 guilty plea.

The defense filed a motion to quash the charge of violation of La. R.S. 14:95.1, which the State opposed. Following a hearing, the trial court granted the motion. The State filed the instant appeal.

DISCUSSION:

The defendant asserted in his motion to quash that attempted aggravated second degree battery is not a predicate offense listed in La. R.S. 14:95.1, because attempted aggravated second degree battery is not a crime in the State of Louisiana.

La. R.S. 14:95.1 provides in pertinent part:

A. It is unlawful for any person who has been convicted of a crime of violence as defined in R.S. 14:2(B) which is a felony or simple burglary, burglary of a pharmacy, burglary of an inhabited dwelling, unauthorized entry of an inhabited dwelling, felony illegal use of weapons or dangerous instrumentalities, manufacture or possession of a delayed action incendiary device, manufacture or possession of a bomb, or possession of a firearm while in the possession of or during the sale or distribution of a controlled dangerous substance, or any violation of the Uniform Controlled Dangerous Substances Law1 which is a felony, or any crime which is defined as a sex offense in R.S. 15:541, or any crime defined as an attempt to commit one of the above-enumerated offenses under the laws of this state, or who has been convicted under the laws of any other state or of the United States or of any foreign government or country of a crime which, if committed in this state, would be one of [2014-1138 La.App. 4 Cir. 3] the above-enumerated crimes, to possess a firearm or carry a concealed weapon.

(emphasis added).

La. R.S. 14:2(B) provides in part:

Page 1099

In this Code, " crime of violence" means an offense that has, as an element, the use, attempted use, or threatened use of physical force against the person or property of another, and that, by its very nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense or an offense that involves the possession or use of a dangerous weapon. The following enumerated offenses and attempts to commit any of them are included as " crimes of violence" : (31) Aggravated second degree battery.

In its sole assignment of error, the State contends that the trial court erred in granting the defendant's motion to quash the charge of possession of a firearm or weapon by a felon, a violation of La. R.S. 14:95.1.

Louisiana jurisprudence dictates that when an appellate court reviews a trial court's ruling involving solely a legal issue, such as presented in the instant case, a de novo standard of review is applied. See State v. Hall, ...


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