Opinion
No. 47,026-KA
01-18-2012
STATE OF LOUISIANA Appellee v. DESHUNSKI DEWAYNE BURKS Appellant
JAMES E. BEAL Louisiana Appellate Project Counsel for Appellant DESHUNSKI DEWAYNE BURKS Pro se CHARLES R. SCOTT II District Attorney Counsel for Appellee TOMMY J. JOHNSON JASON T. BROWN KARELIA A. STEWART WILLIAM J. EDWARDS Assistant District Attorneys
Judgment rendered January 18, 2012 Application for rehearing may be filed within the delay allowed by Art. 922, La. C.Cr.P.
Appealed from the
First Judicial District Court for the
Parish of Caddo, Louisiana
Trial Court No. 290,107
Honorable Craig Marcotte, Judge
JAMES E. BEAL
Louisiana Appellate Project
Counsel for
Appellant
DESHUNSKI DEWAYNE BURKS
Pro se
CHARLES R. SCOTT II
District Attorney
Counsel for
Appellee
TOMMY J. JOHNSON
JASON T. BROWN
KARELIA A. STEWART
WILLIAM J. EDWARDS
Assistant District Attorneys
Before GASKINS, CARAWAY and LOLLEY, JJ.
NOT DESIGNATED FOR PUBLICATION. Rule 2-16.3, Uniform Rules, Courts of Appeal. PER CURIAM.
This appeal arises from the First Judicial District Court, Parish of Caddo, the Honorable Craig Marcotte presiding. Our error patent review reveals, and the state concedes, the prematurity of this appeal caused by the trial court's failure to rule on motions for new trial and for post-verdict judgment of acquittal.
On January 26, 2011, the defendant was convicted of possession of cocaine. The appellant's trial counsel filed the post-verdict motions on February 24, 2011. On May 12, 2011, without first having ruled on the defendant's post-verdict motions, the trial court sentenced the defendant, a third-felony offender, to life imprisonment without the benefit of parole, probation or suspension of sentence.
On December 12, 2011, this Court received an order from the trial court, dated December 9, 2011, denying the defendant's motions for new trial and post-verdict judgment of acquittal. However, pursuant to La. C. Cr. P. arts. 821 and 851, the trial court is required to rule on a defendant's motion for new trial or motion for post-verdict judgment of acquittal prior to sentencing. Failure to do so requires the sentence to be vacated and the matter remanded for further proceedings. State v. Randolph, 409 So. 2d 554 (La. 1981); State v. Jackson, 614 So. 2d 783 (La. App. 2d Cir. 1993); State v. Winslow, 45,414 (La. App. 2d Cir. 12/15/10), 55 So. 3d 910, writ denied, 2011-0192 (La. 6/17/11), 63 So. 3d 1033.
Accordingly, the sentence imposed is hereby set aside and vacated and the matter is remanded for further proceedings. The appellant may appeal any adverse rulings or any sentence subsequently imposed. State v. Jackson, supra.
Additionally, given the foregoing, the defendant's motion for an extension of time to file his pro se brief is denied as moot.
SENTENCE SET ASIDE AND VACATED; CASE REMANDED.