Appealed from the 20th Judicial District Court In and for the
Parish of West Feliciana State of Louisiana Case No.
16-WFLN-311 The Honorable William G. Carmichael, Judge
C. D' Aquilla District Attorney Stewart B. Hughes
Assistant District Attorney St. Francisville, Louisiana
Counsel for Plaintiff/Appellant State of Louisiana
C. Damico Baton Rouge, Louisiana Counsel for
Defendant/Appellee Merrel A. Porche
BEFORE: McDONALD, THERIOT, AND CHUTZ, JJ.
defendant, Merrel A. Porche, was charged by bill of
information with residential contractor fraud at a value of
one thousand five hundred dollars or more, a violation of La.
R.S. 14:202.1 (prior to amendment by 2017 La. Acts, No. 281,
§ l). He initially pled not guilty, but later
withdrew his not guilty plea and subsequently pled nolo
contendere to five counts of misapplication of payments by a
contractor, violations of La. R.S. 14:202. The trial court
initially sentenced the defendant to six months imprisonment
in parish jail on each count, suspended the sentences, and
placed the defendant on supervised probation for a period of
two years on each count, to be served consecutively. After a
hearing to determine what amount, if any, should be paid in
restitution, the trial court found that the amount of
restitution had not been shown to the trial court's
satisfaction and ruled that no restitution would be ordered
in connection with the defendant's sentence. The trial
court later vacated the original sentences and imposed a fine
of one thousand dollars plus court costs or a jail term of
ninety days in default of payment of the fine. The State now
appeals, assigning error to the resentencing and the trial
court's failure to order restitution. For the following
reasons, we vacate the sentence and remand for resentencing.
defendant pled nolo contendere on each count, there was no
trial, and thus, no trial testimony concerning the offenses.
According to the bill of information, on or about March 7,
2016, the defendant failed to apply the payments received
under a contract to settle claims for material and labor due
under the contract. At the Boykinhearing, it was
indicated that the amount misapplied was greater than one
thousand dollars. See La. R.S. 14;202(C).
La. Code Crim. P. art. 920(2), 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
a sentencing error. As previously noted, the defendant pled
nolo contendere to five counts of misapplication of payments
by a contractor, and the trial court originally imposed a
separate sentence on each count, to run consecutively.
However, the trial court subsequently vacated those sentences
and resentenced the defendant to "a fine in the amount
of $ 1, 000 plus costs of court or serve 90 days in the
parish jail." While the trial court had authority to
amend the sentencing under La. Code Crim. P. art. 881, the
defendant's nolo contendere pleas on five counts require
the imposition of five separate sentences. See
State v. Walder, 2006-1239, pp. 4-5 (La, App. 1 Cir.
12/28/06), 952 So.2d 21, 24, writ granted in part, judgment
amended on other grounds, 2007-0198 (La. 10/5/07), 965 So.2d
865; State v. Home, 1999-2192, pp. 2-3 (La.App. 1
Cir. 9/22/00), 768 So.2d 228, 229; State v. Soco,
1994-1099 (La.App. 1 Cir. 6/23/95), 657 So.2d 603, 603.
trial court's failure, in amending the sentencing, to
impose a separate sentence for each of the five counts is a
sentencing error. See Soco, 657
So.2d at 603; see also State v. Russland
Enterprises, Inc., 542 So.2d 154, 155 (La.App. 1 Cir.
1989). In the absence of valid sentences, this appeal is not
properly before this court, and hence, we do not address the
assignments of error raised. See State v.
Kitts, 2017-0777, pp. 2-3 (La.App. 1 Cir. 5/10/18), 250
So.3d 939, 945-46. Thus, we hereby vacate the single sentence
imposed by the trial court and remand the matter to the trial
court for resentencing in conformity with the law. After
resentencing, the State (or defendant) may perfect a new
VACATED; REMANDED FOR RESENTENCING.
with the majority's action of vacating the single
sentence imposed by the trial court and its remand for
resentencing in conformity with the law. In that regard, I
write separately to note that the trial court correctly
vacated the sentences imposed pursuant to the plea agreement.
By sentencing defendant to six months in the parish jail,
suspended, and placing him on probation for two years, to be
served consecutively on each of the five counts of
violation of La. R.S. 14:202 with which he was charged in the
bill of information, without having advised defendant of his
right to a trial by jury, the sentence was illegal.
See La. Const, art. I, § 17 ("A case in
which the punishment may be confinement at hard labor or
confinement without hard labor for more than six months shall
be tried before a jury of six persons.... Except in capital
cases, a defendant may knowingly and intelligently waive his
right to a trial by jury but no later than forty-five days
prior to the ...