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
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.
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.
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.
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.
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.
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.
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)).
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