Opinion
No. 86-K-2284.
February 20, 1987. Reconsideration Denied April 3, 1987.
In re Arabie, Shelby; Applying for Writ of Certiorari and/or Review; to the Court of Appeal, First Circuit, Number KA-86-0087, KA-86-0088; Parish of East Baton Rouge 19th Judicial District Court Div. "J" Number 08-85-314, 10-84-148.
Denied.
LEMMON, J., concurs with reasons.
DIXON, C.J., and CALOGERO, J., would grant the writ.
The double jeopardy problem encountered in Hudson v. Louisiana, 450 U.S. 40, 101 S.Ct. 970, 67 L.Ed.2d 30 (1981), is not present here. The trial judge reviewed the jury verdict (on a post-verdict motion for acquittal) as a question of law and rendered a judgment of conviction on the lesser included responsive offense of manslaughter. La.C.Cr.P. art. 821 C. The court of appeal further reviewed the trial court's action as a question of law and properly reinstated the verdict of guilty of second degree murder. This action by the court of appeal was not a retrial of the defendant and did not constitute a double jeopardy violation.