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State v. Miller

Court of Appeals of Louisiana, First Circuit

April 12, 2019

STATE OF LOUISIANA
v.
SANDFELIX MILLER

          ON APPEAL FROM THE TWENTY-SECOND JUDICIAL DISTRICT COURT NUMBER 16 CR7 132382, DIVISION H, PARISH OF WASHINGTON STATE OF LOUISIANA HONORABLE DONALD M. FENDLASON, JUDGE

          Warren L. Montgomery District Attorney Matthew Caplan Assistant District Attorney Covington, Louisiana Counsel for Appellee State of Louisiana

          Prentice L. White Baton Rouge, Louisiana Counsel for Defendant -Appellant Sandfelix Miller

          BEFORE: WELCH, CHUTZ, AND LANIER, JJ.

          CHUTZ, J.

         Defendant, Sandfelix Miller, was charged by bill of information with being a felon in possession of a firearm, a violation of La. R.S. 14:95.1. He pled not guilty. After a trial by jury, the defendant was unanimously found guilty as charged. The trial court imposed a term of eleven years imprisonment at hard labor, to be served without the benefit of probation, parole, or suspension of sentence. The defendant now appeals, designating one assignment of error. For the following reasons, we affirm the conviction. We vacate the sentence and remand for resentencing.

         STATEMENT OF FACTS

         During the evening of July 22, 2016, Lieutenant Wendell O'Berry with the Bogalusa Police Department was dispatched to respond to a 911 call involving a disturbance between defendant and another individual. Lt. O'Berry was advised by dispatch that defendant was intoxicated and armed. Lt. O'Berry responded and, upon his arrival to the scene, found defendant standing in the street. After telling defendant to place his hands on the police car, Lt. O'Berry saw "the clear outline of a pistol in his pants pocket." When asked if he had a gun on his person, defendant said no. Lt. O'Berry placed defendant under arrest for public intoxication and during a search incident to arrest located a loaded gun in defendant's pocket.

         Trial testimony reflected defendant had been previously convicted of armed robbery on April 3, 1995. Defendant had been sentenced to 10 years imprisonment at hard labor without parole, probation, or suspension of sentence.[1]

         PATENT ERROR

         Pursuant to La. C.Cr.P. art. 920, this court routinely conducts a review for error discoverable by mere inspection of the pleadings and proceedings and without inspection of the evidence. After a careful review of the record, we have found three patent sentencing errors.

         Defendant filed Motions for New Trial and Post-Verdict Judgment of Acquittal, and the trial court denied both motions on the day of sentencing, just prior to the imposition of the sentence. There is no indication in the record defendant waived the delay. Louisiana Code of Criminal Procedure article 873 mandates, in pertinent part, that "[i]f a motion for a new trial, or in arrest of judgment, is filed, sentence shall not be imposed until at least twenty-four hours after the motion is overruled." Herein, the trial court erred by sentencing defendant immediately after ruling on the motion for new trial.

         The Louisiana Supreme Court noted that a failure to observe the 24-hour delay provided in Article 873 may be considered harmless error where the defendant could not show that he suffered prejudice from the violation, and sentencing is not raised on appeal. State v. Augustine, 555 So.2d 1331, 1333-34 (La. 1990) (discussing State v. White, 404 So.2d 1202, 1204-05 (La. 1981)). Where, however, a defendant does challenge his sentence, failure to follow the required 24-hour delay renders a sentence void. Augustine, 555 So.2d at 1333 (citing State v. Mistich, 186 La. 174, 171 So. 841 (1937) and State v. George, 218 La. 18, 48 So.2d 265 (1950), cert, denied, 340 U.S. 949, 71 S.Ct. 528, 95 L.Ed. 684(1951)).

         Even if only through a claim of excessiveness, defendant is challenging his sentence, thus meeting the requirements of Augustine for remand. SeeState v. Magee, 2000-2816 (La.App. 1st Cir. 10/10/01), 809 So.2d 452, 460. Additionally, the record does not contain even an implicit waiver of the sentencing delay by defense counsel. At most, defense counsel did not contest moving on to sentencing immediately following the denials of his post-verdict motions. SeeState v. Kisack, 2016-0797 (La. 10/18/17), 236 So.3d 1201, 1205 (per curiam), cert, denied, Kisack v. Louisiana, - U.S. -, 138 S.Ct. 1175, 200 L.Ed.2d 322 (2018) ("implicit waiver . . . runs afoul of the plain language of Art. 873 that requires that the waiver be expressly made"); but cf.State v. Boyd, 2017-1749 (La. 8/31/18), 251 So.3d 407, 408 (per curiam) (defendant explicitly waived the required delay, where the State offered the trial record into evidence with the proviso that it was doing so if the defendant was prepared to go forward with the sentencing hearing and the defense responded that it had no ...


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