Summary
In State v. Gibbens, 562 So.2d 457 (La.App. 3 Cir.1990), the court in a one-paragraph opinion found that, even though the court minutes specifically showed that the defendant's counsel waived recordation of the testimony of the defendant's trial for first offense driving while intoxicated, those minutes did "not reflect that the trial court affirmatively determined that relator himself intelligently waived this constitutional right, and, in effect, a judicial review on appeal."
Summary of this case from State v. BelleloOpinion
No. K90-99.
January 22, 1990.
APPEAL FROM 15TH JUDICIAL DISTRICT COURT, PARISH OF LAFAYETTE, STATE OF LOUISIANA, HONORABLE RIXIE MOUTON, J.
Jennifer S. Nehrbass, Lafayette, for relator.
J. Nathan Stansbury, Dist. Atty., Lafayette, for the State.
Before FORET, STOKER and KING, JJ.
WRIT GRANTED AND MADE PEREMPTORY:
The Louisiana Constitution provides that "[N]o person shall be subjected to imprisonment or forfeiture of rights or property without the right of judicial review based upon a complete record of all evidence upon which the judgment is based. This right may be intelligently waived." La. Const. Art. 1, § 19.
Relator seeks judicial review of his conviction and sentence, for first offense DWI, in accordance with law by application for supervisory writs. The court minutes attached to the writ application reflect that relator's previous counsel, at the time of trial, moved to waive the recording of testimony for the making of a trial record, which motion was granted by the trial court, and, that for this reason, there is no record of evidence upon which a judicial review can be made. The minutes do not reflect that the trial court affirmatively determined that relator himself intelligently waived this constitutional right, and, in effect, a judicial review on appeal. For these reasons relator's conviction and sentence are set aside and the matter is remanded to the trial court for a new trial.