State of Louisiana v. Russell McCutheon

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA

COURT OF APPEAL, THIRD CIRCUIT

KA20-267

STATE OF LOUISIANA

VERSUS

RUSSELL McCUTHEON

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APPEAL FROM THE SIXTEENTH JUDICIAL DISTRICT COURT PARISH OF IBERIA, NO. 16-0734 HONORABLE VINCENT JOSEPH BORNE, DISTRICT JUDGE

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VAN H. KYZAR

JUDGE

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Court composed of John D. Saunders, Elizabeth A. Pickett and Van H. Kyzar, Judges.

CONVICTIONS AND SENTENCES VACATED. PROSECUTION ABATED FROM INCEPTION.

Sherry Watters Louisiana Appellate Project P. O. Box 58769 New Orleans, LA 70158-8769 (504) 723-0284 COUNSEL FOR DEFENDANT/APPELLANT: Russell McCutheon

M. Bofill Duhe District Attorney, 16th JD W. Claire Howington Assistant District Attorney, 16th JD 300 Iberia St., #200 New Iberia, LA 70560 (337) 369-4420 COUNSEL FOR PLAINTIFF/APPELLEE: State of Louisiana

KYZAR, Judge.

Defendant, Russell McCutheon, was charged by bill of information with aggravated battery, a violation of La.R.S. 14:34, illegal possession of stolen firearms, a violation of La.R.S. 14:69.1, possession of a firearm or carrying a concealed weapon by a convicted felon, a violation of La.R.S. 14:95.1, and illegal use of weapons or dangerous instrumentalities, a violation of La.R.S. 14:94. Defendant subsequently entered an open-ended guilty plea to aggravated battery and possession of a firearm by a convicted felon in exchange for the State’s dismissal of the remaining charges and agreement not to file a habitual offender bill. Defendant was subsequently sentenced to serve ten years at hard labor for each offense with the sentences to run concurrently. He filed a motion to reconsider sentence, which was denied by the trial court. On October 4, 2018, Defendant filed a motion for appeal, which was granted by the trial court. The record was lodged with this Court on May 29, 2020.

On March 20, 2020, Defendant died. As a result of the death of Defendant, the State filed a “Motion to Vacate Convictions and Sentences Upon Notice of Defendant’s Death” on August 7, 2020, and Defendant’s attorney filed a “Motion for Abatement Ab Initio” on August 13, 2020. Subsequently the State provided this Court with a copy of Defendant’s death certificate.1

The State’s and defense counsel’s motions cite cases such as State v. Bowden, 12-1352 (La.App. 3 Cir. 1/9/13), 106 So.3d 308, and State v. Hamilton, 370 So.2d 874 (La.1979), in support of their assertion that the convictions and sentences should be vacated and the proceedings abated from their inception.

Examination of the law and cited jurisprudence confirms that relief is due based on 1 The State notes the certificate spells Defendant’s last name as “McCutcheon” instead of “McCutheon,” but otherwise, the information on the death certificate, such as address, date of birth, and social security number, match the information in the State’s file.

the facts in this case. Accordingly, Defendant’s convictions and sentences are vacated and all proceedings in this prosecution are abated from their inception. CONVICTIONS AND SENTENCES VACATED; PROSECUTION ABATED

FROM INCEPTION.