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State v. Perez-Espinosa

Court of Appeals of Louisiana, Fifth Circuit

April 10, 2019

STATE OF LOUISIANA
v.
VIUSQUI J. PEREZ-ESPINOSA

          ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH OF JEFFERSON, STATE OF LOUISIANA NO. 17-415, DIVISION "K" HONORABLE ELLEN SHIRER KOVACH, JUDGE PRESIDING

          COUNSEL FOR PLAINTIFF/APPELLEE, STATE OF LOUISIANA Paul D. Connick, Jr. Terry M. Boudreaux Anne M. Wallis Kellie M. Rish Richard L. Olivier

          COUNSEL FOR DEFENDANT/APPELLANT, VIUSQUI J. PEREZ-ESPINOSA Jane L. Beebe

          Panel composed of Judges Jude G. Gravois, Marc E. Johnson, and Robert A. Chaisson

          MARC E. JOHNSON JUDGE

         Defendant/Appellant, Viusqui Perez-Espinosa, appeals his convictions and sentences for second degree murder and obstruction of justice from the 24thJudicial District Court, Division "K". For the following reasons, we vacate Defendant's sentences and remand the matter for further proceedings.

         FACTS AND PROCEDURAL HISTORY

         On May 4, 2017, a Jefferson Parish Grand Jury returned a true indictment charging Defendant with second degree murder in violation of La. R.S. 14:30.1 (count one) for the killing of Ives Alexis Portales-Lara and obstruction of justice in violation of La. R.S. 14:130.1 (count two). On May 8, 2017, Defendant pleaded not guilty at his arraignment. On January 23, 2018, the State filed a Notice of Intent to Introduce Evidence of Other Acts, which the trial court heard and granted on February 7, 2018. Meanwhile, on January 29, 2018, the trial court heard and denied motions to suppress statements and evidence.

         The trial commenced against Defendant on March 19, 2018. At the conclusion of the trial, the 12-person jury returned verdicts of guilty as charged on March 26, 2018. On April 25, 2018, Defendant filed a written Motion for New Trial and for Post-Verdict Judgment of Acquittal and a written Motion for Appeal and Designation of Record.

         On April 26, 2018, the date of sentencing, the trial court granted Defendant's Motion for Appeal and Designation of the Record. After granting the motion for appeal, the trial court heard and denied Defendant's Motion for New Trial and for Post-Verdict Judgment of Acquittal. Subsequent to a victim impact statement being read, the trial court sentenced Defendant to life imprisonment at hard labor without the benefit of parole, probation, or suspension of sentence on count one and 40 years at hard labor on count two, with the sentences to be served consecutively. Defendant filed a motion to reconsider the sentences in open court, which the trial court denied.[1] The instant appeal followed.

         LAW AND ANALYSIS

         On appeal, Defendant alleges the trial court erred in granting the State's motions to have other crimes evidence admitted against him, and the trial court imposed excessive consecutive sentences. However, there is an error patent in this matter that precludes review of Defendant's assignments of error.

         In this case, as previously mentioned, Defendant was convicted on March 26, 2018. On April 25, 2018, Defendant filed a Motion for New Trial and for Post-Verdict Judgment of Acquittal and a written Motion for Appeal. The April 26, 2018 sentencing transcript reflects that the trial court granted Defendant's motion for appeal, denied the Motion for New Trial and for Post-Verdict Judgment Acquittal, and then imposed Defendant's sentence all on the same date and in the same proceeding. We find that, once the trial court granted the motion for appeal, it was without jurisdiction to rule on the Motion for New Trial and for Post-Verdict Judgment of Acquittal or to impose Defendant's sentences.

         Pursuant to La. C.Cr.P. art. 916, a trial court is divested of jurisdiction upon the granting of a defendant's motion for an appeal. State v. Lampkin, 12-391 (La.App. 5 Cir. 5/16/13); 119 So.3d 158, 162, writ denied, 13-2303 (La. 5/23/14); 140 So.3d 717. A premature appeal need not always be dismissed when a sentence is imposed after the defendant's motion for appeal has been filed. State v. Johnson, 13-75 (La.App. 5 Cir 10/9/13); 128 So.3d 325, ...


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