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State v. Calloway

Court of Appeals of Louisiana, Fifth Circuit

April 24, 2019

STATE OF LOUISIANA
v.
TERRANCE DARNELL CALLOWAY

          ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH OF JEFFERSON, STATE OF LOUISIANA NO. 16-4811, DIVISION "F" HONORABLE MICHAEL P. MENTZ, JUDGE PRESIDING

          COUNSEL FOR PLAINTIFF/APPELLEE, STATE OF LOUISIANA Paul D. Connick, Jr. Terry M. Boudreaux.

          COUNSEL FOR DEFENDANT/APPELLANT, TERRANCE DARNELL CALLOWAY Gwendolyn K. Brown.

          Panel composed of Judges Susan M. Chehardy, Jude G. Gravois, and Hans J. Liljeberg

          HANS J. LILJEBERG, JUDGE

         Defendant, Terrance Darnell Calloway, appeals the consecutive sentences the trial court imposed after a jury convicted him of second degree murder and obstruction of justice. Defendant also contends the trial court erred by proceeding directly to sentencing without first obtaining a waiver of sentencing delays. For the reasons that follow, we vacate defendant's sentences and remand the matter to the trial court for further proceedings.

         STATEMENT OF THE CASE

         On September 29, 2016, a Jefferson Parish Grand Jury returned an indictment charging defendant with second degree murder in violation of La. R.S. 14:30.1 (count one) and obstruction of justice in violation of La. R.S. 14:130.1 (count two). On September 30, 2016, defendant pled not guilty at his arraignment.

         Jury selection occurred on June 11, 2018, and, on June 13, 2018, the jury returned a verdict of guilty as charged. On June 27, 2018, defendant filed a Motion for New Trial and a Motion for Post Verdict Judgment of Acquittal. On the same day, defendant filed a written Motion for Appeal and Designation of Record.

         According to the transcript, on June 28, 2018, the trial court denied the Motion for New Trial and the Motion for Post Verdict Judgment of Acquittal and then granted the Motion for Appeal. After two victim impact statements were read, the trial court sentenced defendant to life in prison without benefit of parole, probation, or suspension of sentence on count one. The trial court also sentenced defendant to forty years at hard labor on count two to run consecutively with his sentence on count one. Due to defendant's actions during sentencing, the trial court also found him in contempt of court and sentenced defendant to an additional three months.

         DISCUSSION

         Defendant raises two sentencing issues as assignments of error on appeal: 1) The trial court erred by imposing the sentences consecutively; and 2) The trial court erred by proceeding directly to sentencing without first obtaining a waiver of sentencing delays.

         Prior to reaching the merits of defendant's appeal, we must first address the jurisdictional issue created due to the trial court's decision to grant defendant's motion for appeal prior to sentencing defendant. As explained above, defendant filed his motion for appeal with other post-trial motions on June 27, 2018. Defendant appeared for sentencing on June 28, 2018, at which time the trial court proceeded to deny the post-trial motions and grant the motion for appeal. Subsequently, the trial court heard victim impact statements and imposed 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 appeal. State v. Johnson, 13-75 (La.App. 5 Cir. 10/9/13), 128 So.3d 325, 327. Once the trial court is divested of jurisdiction, it may take only certain specified actions, none of which include imposing sentence (except an enhanced sentence under La. R.S. 15:529.1). La. C.Cr.P. art. 916. A ...


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