Opinion
No. KA 08 1353.
April 15, 2009.
APPEAL FROM THE TWENTY-SEVENTH JUDICIAL DISTRICT COURT PARISH OF ST. LANDRY, NO. 07-K-3432-A HONORABLE JAMES P. DOHERTY, PRESIDING.
Earl J. Taylor, District Attorney, Jennifer M. Ardoin, Assistant District Attorney, Opelousas, LA, COUNSEL FOR APPELLEE: State of Louisiana.
Peggy Sullivan, Louisiana Appellate Project, Monroe, LA, COUNSEL FOR DEFENDANT-APPELLANT: Rocky Bourg.
Court composed of SYLVIA R. COOKS, ELIZABETH A. PICKETT and BILLY H. EZELL, Judges.
Defendant, Rocky Bourg, appeals his conviction and fifteen year sentence for committing first degree robbery. Finding the trial court did not rule on Defendant's motion for post verdict judgment of acquittal, we must vacate Defendant's sentence.
FACTS
James Seraile, the forty-six-year-old victim, testified he had been disabled for nine years suffering from schizophernia. He took Prozac and "some nerve medication." On the evening of July 7, 2007, he brought his niece, Lakeba Stoner, to work at the 167 Truck Stop located in Opelousas. Mr. Seraile testified he recently cashed his disability check, and had $1,000.00 in his wallet. While at the truck stop, Mr. Seraile purchased some pralines and peanuts. Mr. Seraile recalls when he went to the cash register, Defendant was talking to his niece, and Defendant gave Ms. Stoner his name and cell phone number. When Mr. Seraile exited the store, Defendant asked him for a ride to the nearby Quarters Casino Truck Stop, and Mr. Seraile agreed. According to Mr. Seraile, before Defendant entered his car, Mr. Seraile placed his wallet in the sun visor on the passenger's side of the car.
Mr. Seraile testified Defendant requested he pull on the side of the casino truck stop. According to Mr. Seraile, Defendant then pulled out a twelve-inch knife, and held it to Mr. Seraile's throat, demanding he hand over his money. Mr. Seraile informed Defendant his money was not on him, and grabbed Defendant's hand. After a tussle between the two, Mr. Seraile exited the car, and Defendant chased after him. While fleeing from Defendant, Mr. Seraile injured his ankle. Mr. Seraile testified he ran into the casino truck stop which was about ninety feet from the car, and told the cashier to call the police. Defendant fled in Mr. Seraile's car. Mr. Seraile denied giving Defendant permission to take his car.
A copy of the medical records introduced into evidence at trial indicated Mr. Seraile reported to the medical provider he was suffering from foot and knee pain from a fall which occurred while "running from robber."
Mr. Seraile testified Officer Sylvester came to investigate the incident. Defendant was found in the vehicle in Port Barre. Mr. Seraile testified he recovered the car and the wallet. No money was taken from the wallet.
Lakeba Stoner, Mr. Seraile's niece, testified her uncle brought her to work around 6:30 p.m. Ms. Stoner explained that her uncle left the store and returned around 11:00 or 12:00 p.m. At that time, she was talking to Defendant. Ms. Stoner stated Defendant wrote down his name and his cell number and gave it to her. Ms. Stoner described the events between Defendant and her uncle, stating in pertinent part:
He [w]as talking to me at the counter. My uncle came to the counter to purchase something . . ., my uncle went outside . . . [H]e asked to speak to my uncle. So my uncle came and told me that he asked for a ride to the other truck stop . . . Rocky came back in the store and told me that my uncle was coming right back, my uncle wasdropping him off at the other truck stop.
Ms. Stoner recalled getting a phone call from the lady at the other truck stop.
Officer Sylvester, a deputy with the St. Landry's Parish Sheriff's Office, testified he responded to a call at the Quarters Casino Truck Stop around 11:00 or 11:30 p.m., which was about ten or fifteen minutes after he received the call. When he arrived, he noticed the victim was "shaken up, nervous, irate." The victim also had scraps on his legs.
After arriving at the casino truck stop, the deputy patted down the victim to check for any weapons. The deputy did not ask the victim to empty his pockets. The officer testified while the victim was telling him what happened, he spotted his vehicle on the roadway. Officer Sylvester called for assistance to cut the car off and attempted to catch up to the vehicle, but lost track of Defendant. He returned to the scene and radioed the Port Barre Police to be on the lookout for the vehicle. The deputy explained that Defendant was stopped in the vehicle in Port Barre. Consequently, he and the victim traveled to the location of the vehicle in Port Barre. The deputy testified he questioned Defendant asking him if that was his car, and the Defendant responded, no, but the victim let him use it. The deputy stated he asked the victim if he let Defendant use the vehicle, and the victim responded no, that he had held a knife to his throat. Although the deputy searched the car for the knife, none was found and the knife was not recovered. The deputy testified there were no knife marks in the vehicle.
Officer Charlie Ford, an officer for the Port Barre Police Department, testified on July 7, 2007, he received a dispatch around 11:30 or 12:00 p.m. to be watching for a white Lincoln Town car driven by a young white male. According to the officer, he activated his lights and siren, and Defendant pulled over immediately. Officer Ford testified he questioned Defendant about his use of the car, and Defendant stated he borrowed it from a guy at a gas station and casino. He then asked Defendant to exit the car, and he patted him down. No knife was found. The officer described Defendant as a little nervous and sweating.
Defendant testified he went into the store and saw the victim speaking to his niece. Defendant started talking to the niece, and gave her his name and cell number. He asked Mr. Seraile to step outside, where he asked for a ride to the Quarters Casino Truck Stop. Defendant explained that he informed the victim he did not have any gas money, but he could give him some crack cocaine. According to Defendant, the victim agreed to allow him to use the car for a little while in exchange for the crack cocaine. Defendant denied telling the victim where to park when they arrived at the casino truck stop, but stated the victim pulled to the side of the building. Defendant explained, once parked on the side of the building, he took out his seven rocks of crack cocaine and told the victim to pick five rocks. According to Defendant, the victim took all seven, jumped out of the car and started running. Defendant stated he left in the victim's car heading for Krotz Springs to pick up more drugs and some money. Defendant admitted he was on crack cocaine and marijuana when the incident took place. Defendant denied having a weapon.
Defendant, Rocky Bourg, was arrested and charged with armed robbery, a violation of La.R.S. 14:64. On May 27, 2008, a jury convicted him of first degree robbery, a violation of La.R.S. 14:64.1.
On August 1, 2008, the Defendant filed in the trial court a "Motion for Post-Verdict Judgment of Acquittal," however, there is no ruling on this motion in the record.
On October 3, 2008, the trial court sentenced the Defendant to fifteen years at hard labor without the benefit of probation, parole or suspension of sentence. Following imposition of the sentence, the defense made an oral motion to reconsider sentence, which was denied by the trial court.
On appeal, the Defendant, pro se and through his attorney, assigns the following errors:
(1) Insufficient evidence;
(2) ineffective assistance of counsel; and
(3) the trial court imposed an unconstitutionally harsh and excessive sentence given the facts and circumstances of this case.
ERROR PATENT
In accordance with La. Code Crim.P. art. 920, all appeals are reviewed for errors patent on the face of the record. After reviewing the record, we find there is an error patent which requires we vacate Defendant's sentence.
In the "Motion for Post-Verdict Judgment of Acquittal," Defendant asserted the State failed to prove he committed first degree robbery. However, information from the district court clerk's office indicates there is no ruling on this motion.
Louisiana Code of Criminal Procedure Article 821 provides in pertinent part:
A. The defendant may move for a post verdict judgment of acquittal following the verdict. A motion for a post verdict judgment of acquittal must be made and disposed of before sentence.
In State v. Leonard, 99-800 (La.App. 3 Cir. 2/2/00), 758 So.2d 238, this court discovered on error patent review there was no ruling on the Defendant's motion for post verdict judgment of acquittal. We held, in pertinent part:
La. Code Crim.P. art. 821 requires that a motion for post verdict judgment of acquittal be filed and disposed of before sentencing. . . . When such motions are filed but not disposed of before sentencing, the sentence must be vacated and the case remanded for disposition of the motions before resentencing. State v. Townsend, 94-658 (La.App. 3 Cir. 12/7/94); 647 So.2d 535; State v. Randolph, 409 So.2d 554 (La. 1981); El-Mumit v. Twenty-First Judicial District Court, 500 So.2d 414 (La. 1987). . . . The motion for post verdict judgment of acquittal, on the other hand, has not yet been ruled upon. Thus, the Defendant's sentence is vacated and the case remanded for disposition of the motion for post verdict judgment of acquittal and, if necessary, resentencing.
Id. at 239.
Consequently, we find Defendant's sentence must be vacated, and the matter remanded to the trial court for disposition of the motion for post verdict judgment of acquittal and, if necessary, resentencing. A discussion of the remaining assignments of errors is pretermitted by this court's remand. Defendant's right to appeal his conviction and sentence is preserved.
DECREE
For the foregoing reasons, Defendant's sentence is vacated and the case remanded for disposition of Defendant's motion for post verdict judgment of acquittal. Defendant's right to appeal his conviction and sentence is preserved.