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State v. Bourg

Court of Appeals of Louisiana, Third Circuit

December 6, 2018

STATE OF LOUISIANA
v.
DAVID BOURG

          APPEAL FROM THE THIRTY-THIRD JUDICIAL DISTRICT COURT PARISH OF ALLEN, NO. CR-2014-2706 HONORABLE H. WARD FONTENOT, DISTRICT JUDGE

          Herbert Todd Nesom District Attorney - 33rd Judicial District Joe Green Assistant District Attorney - 33rd Judicial District COUNSEL FOR: Plaintiff/Appellee - State of Louisiana

          Chad M. Ikerd Louisiana Appellate Project COUNSEL FOR: Defendant/Appellant - David Bourg

          Court composed of Ulysses Gene Thibodeaux, Chief Judge, Sylvia R. Cooks, and Marc T. Amy, Judges.

          ULYSSES GENE THIBODEAUX CHIEF JUDGE

         David Bourg was convicted of manslaughter and appeals the trial court's judgment sentencing him under the firearm enhancement statutes, La.Code Crim.P. arts. 891.1-893.3. He also appeals this court's ruling in a previous writ application which reversed the trial court's favorable ruling on Defendant's motion for a new trial. Our previous ruling is not clear error. Thus, it is law of the case and will not be reconsidered. Thus, the conviction is affirmed. However, because we find a sentencing error in the trial court's application of the firearm enhancement provision, we remand Mr. Bourg to the trial court for resentencing.

         I.

         ISSUES

We must decide:
(1) whether Mr. Bourg has shown clear error in this court's previous ruling; and
(2) whether the trial court erred in applying the firearm enhancement when sentencing Mr. Bourg.

         II.

         FACTS AND PROCEDURAL HISTORY

         "On June 1, 2014, David Bourg drove Michael Pitre home from target practice. While parked in front of Pitre's mother's house, Bourg shot Pitre in the head with Bourg's nine millimeter Ruger handgun, killing Pitre. Pitre did not have a gun." State v. Bourg, 16-915, p. 1 (La.App. 3 Cir. 6/21/17), 223 So.3d 26, 28, writ denied, 17-1504 (La. 11/17/17), 229 So.3d 932. David Bourg was charged by bill of indictment with committing the second degree murder of Michael Pitre, in violation of ...


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