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State v. Harmon

Court of Appeals of Louisiana, Fifth Circuit

May 22, 2019

THE STATE OF LOUISIANA
v.
NICOLVA A HARMON

          ON APPLICATION FOR SUPERVISORY REVIEW FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH OF JEFFERSON, STATE OF LOUISIANA NO. 17-5460, DIVISION "I" HONORABLE NANCY A. MILLER, JUDGE PRESIDING

          COUNSEL FOR PLAINTIFF/RESPONDENT, THE STATE OF LOUISIANA Paul D. Connick, Jr., Terry M. Boudreaux Joshua K. Vanderhooft

          COUNSEL FOR DEFENDANT/RELATOR, NICOLVA A HARMON Leloashia Taylor

          Panel composed of Judges Susan M. Chehardy, Fredericka Homberg Wicker, and Robert A. Chaisson

          SUSAN M. CHEHARDY CHIEF JUDGE

         Defendant, Nicolva Harmon, appeals her conviction and sentence for issuing a worthless check, in violation of La. R.S. 14:71. Upon supervisory review, we reverse defendant's conviction, vacate defendant's sentence, and remand.

         Factual and Procedural History

         According to the testimony elicited at trial, Harmon purchased an automobile from Ray Brandt Nissan in Harvey, Louisiana on January 27, 2017. However, on or about March 3, 2017, Harmon asked the employees of Ray Brandt Nissan to help her change her vehicle registration from Mississippi to Louisiana. Because the taxes and fees are higher to title a vehicle in Louisiana, Harmon agreed to pay the extra cost and signed check no. 1068 to Ray Brandt Nissan for $1, 317.22 on March 3, 2017.

         At trial, Craig Pesses, the Finance Director for Ray Brandt Nissan, testified that his company's records reflect that check no. 1068 was received on March 22, 2017. Pesses testified that the delay of over two weeks was purposeful, likely because the customer had asked the dealership to "hold" her March 3, 2017 check until a later date. After the check was presented to Harmon's bank, it was returned unpaid to Ray Brandt Nissan on March 28, 2017 for lack of sufficient funds in Harmon's checking account.

         Thereafter, the dealership attempted to collect the debt by sending multiple demand letters via certified mail to no avail. On May 31, 2017, the dealership turned the matter over to the Jefferson Parish District Attorney's Office, which notified Harmon, through at least two certified mailings, of the worthless check and demanded payment of the debt on behalf of Ray Brandt Nissan. Harmon did not contact the Jefferson Parish District Attorney to pay the debt.

         On August 24, 2017, the Jefferson Parish District Attorney filed a bill of information charging Nicolva Harmon, defendant-herein, with issuing a worthless check on March 3, 2017 to Ray Brandt Nissan in the amount of $1, 317.22, in violation of La. R.S. 14:71. On November 2, 2018, the District Attorney's office amended the bill of information to charge defendant with issuing a worthless check in an amount less than $1, 000.00.

         On December 17, 2018, a bench trial commenced. After considering the testimonial and documentary evidence, the trial court rendered a verdict of guilty as charged. On January 14, 2019, the trial court sentenced defendant to imprisonment in parish prison for six months, suspended that sentence, and placed defendant on "in house probation" for twelve months but delayed execution of sentence until April 11, 2019. The trial judge ordered restitution of $999.00 and forty hours of community service. Defendant filed this application for supervisory review.

         Law and Analysis

         In her writ application, defendant raises five assignments of error, [1] which we pretermit as our review reveals a defect in the prosecution that requires reversal. In one of her assignments of error, defendant argues that the trial court erred in ...


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