Opinion
NO. 2014 KW 0117
04-21-2014
STATE OF LOUISIANA v. SHAWN GILMORE
In Re: State of Louisiana, applying for supervisory writs, 21st Judicial District. Court, Parish of Tangipahoa, No. 1100494.
BEFORE: KUHN, HIGGINBOTHAM AND THERIOT, JJ.
WRIT GRANTED. In criminal cases, this Court's jurisdiction "extends to only questions of law." La. Const. art. 5, § 10(B). A trial court has wide, although not unbridled discretion in imposing a sentence within the statutory limits. A sentence imposed within the statutory limits may be set aside if the trial court manifestly abuses its discretion in imposing that sentence. See State v. Trahan, 93-1116 (La. App. 1st Cir. 5/20/94), 637 So.2d 708. When imposing a sentence, the trial court should consider: I) Whether "there is an undue risk . . . the defendant will commit another crime." 2) Whether "the defendant is in need of correctional treatment or a custodial environment that can be provided most effectively by his commitment to an institution." 3) Whether "[a] lesser sentence will deprecate the seriousness of the defendant's crime." La. Code Crim. P. art. 894.1(A). While not controlling the trial court's discretion, the following grounds shall be accorded weight in its determination of sentence: "[whether] the offender used a dangerous weapon in the commission of the offense; any other relevant aggravating circumstances; the defendant acted under strong provocation; [t]here were substantial grounds tending to excuse or justify the defendant's criminal conduct, though failing to establish a defense; [t]he defendant has no history of prior delinquency or criminal activity or has led a law-abiding life for a substantial period of time before the commission of the instant crime; [t]he defendant's criminal conduct was the result of circumstances unlikely to recur; [and] [a]ny other relevant mitigating circumstance." La. Code Crim. P. art. 894.1(B) (10) (21) (24) (25) (28) (29)& (33) .
It is obvious from the trial court's previous rulings that it abused its discretion in sentencing the defendant to one day imprisonment at hard labor. First, the trial court granted the defendant's motion for new trial. The Louisiana Supreme Court reversed the trial court's ruling, finding the trial court abused its discretion in granting the defendant's motion for new trial. Agreeing with Judge Kuhn's, dissent, the supreme court indicated, "[n]either collectively nor individually are any of the reasons cited by the trial court grounds for granting a new trial." State v. Gilmore, 2013-1559 (La. 8/22/13), 127 So.3d 907. Then, on remand, the trial court sentenced the defendant to five years imprisonment at hard labor but suspended the sentence and placed the defendant on supervised bench probation for five years. This Court granted the State's writ application and remanded the case to the trial court for resentencing, finding the trial court imposed an illegally lenient sentence, as La. Code Crim. P. art. 893(A) prohibits suspension of sentence and probation for crimes of violence such as manslaughter. State v. Gilmore, 2013-1758 (La. App. 1st Cir. 10/15/13) (unpublished). Lastly, when the case was remanded the second time, the trial court sentenced the defendant to one day imprisonment at hard labor, gave her credit for time served, and deemed her sentence satisfied.
We find as a matter of law that the trial court abused its discretion in sentencing the defendant to one day imprisonment at hard labor. Therefore, in the interest of justice, this case is remanded to the district court for resentencing before a judge other than the judge who imposed the initial sentence. See La. Code Crim. P. art. 881.4(B). The new judge is ordered to review the entire record and order a presentence investigation report, if the report has not been ordered, prior to imposing a new sentence.
MRT
JEK
Higginbotham, J., dissents and would deny the writ application on the showing made. The State of Louisiana failed to include the November 5, 2013 sentencing transcript, the 911 recordings, the defendant's initial statement to the police, and any other portions of the district court record that might support the claim raised in the motion to reconsider sentence. COURT OF APPEAL, FIRST CIRCUIT __________
DEPUTY CLERK OF COURT
FOR THE COURT