Opinion
No. 53324.
April 10, 1973.
APPEAL FROM NINETEENTH JUDICIAL DISTRICT COURT, PARISH OF EAST BATON ROUGE, STATE OF LOUISIANA, HONORABLE JOHN S. COVINGTON, J.
Woodson T. Callihan, Jr., Baton Rouge, for defendant-appellant.
William J. Guste, Jr., Atty. Gen., LeRoy A. Hartley, Sp. Asst. Atty. Gen., Ossie Brown, Dist. Atty., for plaintiff-appellee.
Defendant, James McAllister, was tried by a jury and found guilty without capital punishment of aggravated rape and sentenced to life imprisonment in the custody of the Department of Corrections. (La.R.S. 14:42). On this appeal, the defendant relies on four bills of exceptions to obtain a reversal.
However, we do not consider these bills, because there is an error discoverable on the face of the proceedings which merits our attention. La.C.Cr.P. Art. 920. The Minutes show that the sentence was imposed before the expiration of the mandatory statutory delay, and there is no minute entry or showing of a waiver of same — a patent error requiring remand. State v. Douglas, 250 La. 480, 196 So.2d 799 (1967); see also State v. Augustine, 263 La. 977, 270 So.2d 118 (1972).
La. Code of Criminal Procedure Article 873 provides:
"If a defendant is convicted of a felony, at least three days shall elapse between conviction and sentence. If a motion for a new trial, or in arrest of judgment, is filed, sentence shall not be imposed until at least twenty-four hours after the motion is overruled. If the defendant expressly waives a delay provided for in this article or pleads guilty, sentence may be imposed immediately."
Where the record does not disclose any waiver of the three day delay in sentencing after the conviction returned on January 10, 1973, and it is clear from the minutes that less than the mandatory delay had elapsed at the time of the sentencing which was rendered Monday, January 15, 1973, we note, ex proprio motu, that the sentence is void, since imposed before expiration of the three day delay and without waiver of same.
For these reasons, the sentence is annulled and set aside, and the case is remanded to the Nineteenth Judicial District Court for the Parish of East Baton Rouge, for re-sentencing in conformity with the law.