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State of Louisiana Versus Mishanda L Reed
STATE OF LOUISIANA NO. 24-KA-120
VERSUS FIFTH CIRCUIT
MISHANDA L REED COURT OF APPEAL
STATE OF LOUISIANA
ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH OF JEFFERSON, STATE OF LOUISIANA NO. 21-5868, DIVISION "M" HONORABLE SHAYNA BEEVERS MORVANT, JUDGE PRESIDING
April 23, 2024
SUSAN M. CHEHARDY CHIEF JUDGE
Panel composed of Judges Susan M. Chehardy, Jude G. Gravois, and John J. Molaison, Jr.
SENTENCE VACATED; APPEAL DISMISSED WITHOUT PREJUDICE; REMANDED WITH INSTRUCTIONS SMC JGG JJM
CHEHARDY, C.J.
On September 28, 2023, a jury convicted defendant, Mishanda L. Reed, of attempted second degree kidnapping, a responsive verdict, and found her not guilty of aggravated battery. Defendant subsequently retained new counsel and filed a motion to continue sentencing. On October 12, 2023, new counsel for defendant filed both a motion for new trial and a motion in arrest of judgment, with a single memorandum submitted in support of both motions.1
On October 20, 2023, at the conclusion of the hearing on defendant’s post-trial motions, the trial court denied the motion for new trial, but there is no written or oral ruling in the record that addresses defendant’s motion in arrest of judgment. That same day, defense counsel waived sentencing delays and the trial court sentenced defendant to eleven years imprisonment at hard labor with credit for time served.
On December 13, 2023, the trial court denied defendant’s motion to reconsider the sentence. Defendant subsequently filed a “Notice of Appeal,” which the trial court granted, and the record was lodged in this Court on March 8, 2024.
Upon review of the record, we find the trial court inadvertently sentenced defendant without having resolved her outstanding motion in arrest of judgment. La. C.Cr.P. art. 861 states, in pertinent part: “A motion in arrest of judgment must be filed and disposed of before sentence.” When a trial court sentences a defendant before it has ruled on a motion in arrest of judgment, this Court lacks appellate jurisdiction. As such, the matter requires us to vacate defendant’s sentence, dismiss the present appeal without prejudice, and remand for a ruling on the outstanding motion in arrest of judgment and for subsequent resentencing, if necessary. See,
1 La. C.Cr.P. art. 859 provides that a court shall arrest the judgment when, among other things, the “verdict is not responsive to the indictment, or is otherwise so defective that it will not form the basis of a valid judgment.”
24-KA-120 1 e.g., State v. Wilson, 96-251 (La. App. 5 Cir. 10/1/96), 683 So.2d 775, 777; see also State v. Anderson, 99-1407 (La. App. 4 Cir. 1/26/00), 753 So.2d 321, 324.
DECREE
Accordingly, pursuant to Uniform Rules – Courts of Appeal, Rule 2-16.2(A)(1), we vacate defendant’s sentence, dismiss the present appeal without prejudice, and remand for a ruling on defendant’s outstanding motion in arrest of judgment and for resentencing, if necessary. Defendant may again appeal her conviction and sentence in the event of an adverse ruling.
SENTENCE VACATED; APPEAL DISMISSED WITHOUT PREJUDICE; REMANDED WITH INSTRUCTIONS
24-KA-120 2 SUSAN M. CHEHARDY CURTIS B. PURSELL CHIEF JUDGE CLERK OF COURT
SUSAN S. BUCHHOLZ FREDERICKA H. WICKER CHIEF DEPUTY CLERK JUDE G. GRAVOIS MARC E. JOHNSON STEPHEN J. WINDHORST LINDA M. WISEMAN JOHN J. MOLAISON, JR. FIRST DEPUTY CLERK SCOTT U. SCHLEGEL TIMOTHY S. MARCEL FIFTH CIRCUIT MELISSA C. LEDET JUDGES 101 DERBIGNY STREET (70053) DIRECTOR OF CENTRAL STAFF POST OFFICE BOX 489 GRETNA, LOUISIANA 70054 (504) 376-1400
(504) 376-1498 FAX www.fifthcircuit.org
NOTICE OF JUDGMENT AND CERTIFICATE OF DELIVERY I CERTIFY THAT A COPY OF THE OPINION IN THE BELOW-NUMBERED MATTER HAS BEEN DELIVERED IN ACCORDANCE WITH UNIFORM RULES - COURT OF APPEAL, RULE 2-16.4 AND 2-16.5 THIS DAY APRIL 23, 2024 TO THE TRIAL JUDGE, CLERK OF COURT, COUNSEL OF RECORD AND ALL PARTIES NOT REPRESENTED BY COUNSEL, AS LISTED BELOW:
24-KA-120 E-NOTIFIED 24TH JUDICIAL DISTRICT COURT (CLERK) HONORABLE SHAYNA BEEVERS MORVANT (DISTRICT JUDGE) THOMAS J. BUTLER (APPELLEE) RALPH S. WHALEN, JR. (APPELLANT)