State v. Mason

Full title: STATE OF LOUISIANA v. THOMAS W. MASON, III

Court: STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT

Date published: Dec 21, 2012

NUMBER 2012 KA 0869 (La. Ct. App. Dec. 21, 2012)

Opinion

NUMBER 2012 KA 0869

12-21-2012

STATE OF LOUISIANA v. THOMAS W. MASON, III

Walter P. Reed District Attorney Counsel for Plaintiff/Appellee State of Louisiana Kathryn Landry Special Appeals Counsel Baton Rouge, LA Lieu T. Vo Clark Louisiana Appellate Project Mandeville, LA Counsel for Defendant/Appellant Thomas W. Mason, III

GUIDRY

NOT DESIGNATED FOR PUBLICATION

Appealed from the

Twenty-Second Judicial District Court

In and for the Parish of St. Tammany

State of Louisiana

Docket Number 496,714

Honorable William J. Burns, Judge Presiding

Walter P. Reed
District Attorney
Counsel for
Plaintiff/Appellee
State of Louisiana
Kathryn Landry
Special Appeals Counsel
Baton Rouge, LA
Lieu T. Vo Clark
Louisiana Appellate Project
Mandeville, LA
Counsel for
Defendant/Appellant
Thomas W. Mason, III

BEFORE: CARTER, C.J., GUIDRY, AND GAIDRY, JJ.

GUIDRY , J.

Defendant, Thomas W. Mason, III, was charged by bill of information with one count of fourth-offense driving while intoxicated ("DWI"), a violation of La. R.S. 14:98.¹ He pled not guilty and moved to quash his alleged predicate convictions, arguing that he failed to adequately waive his constitutional rights prior to his guilty pleas in those matters. Following a hearing, the motion was denied. After a jury trial, defendant was found guilty as charged. He timely moved for a postverdict judgment of acquittal and for a new trial. The trial court denied defendant's motion for new trial, but the record does not reflect that the trial court ever ruled on the motion for postverdict judgment of acquittal. The trial court sentenced the defendant to twenty-seven years at hard labor, the first three of which were imposed without benefit of parole.

1 Defendant's predicate convictions were alleged in the bill of information as follows: 1) a December 16, 2004 conviction for DWI in the First Parish Court of Jefferson Parish under docket number F1452909; 2) a December 16, 2004 conviction for DWI in the First Parish Court of Jefferson Parish under docket number F1518281; and 3) a January 16, 2007 conviction for DWI in the 24th Judicial District Court in Jefferson District Court in Jefferson Parish under docket number 05-6526.

Defendant timely moved for reconsideration of sentence, but that motion was also denied. He now appeals, contending: 1) the trial court erred in denying his motion to quash; 2) the trial court erred in denying his motion to reconsider sentence; and 3) the trial court erred in imposing an excessive sentence. For the following reasons, we find error under La. C. Cr. P. art. 920(2), pretermit consideration of defendant's assigned errors, vacate the sentence, and remand for a disposition of the outstanding motion for postverdict judgment of acquittal.²

2 We note that the trial court's imposition of sentence does not strictly conform to the sentencing guidelines of La. R.S. 14:98(E)(l)(a), which states that the first two years of the imposed sentence shall be served without the benefit of probation, parole, or suspension of sentence.

REVIEW FOR ERROR

Initially, we note that our review for error is pursuant to La. C. Cr. P. art. 920, which provides that the only matters to be considered on appeal are errors designated in the assignments of error and "error that is discoverable by a mere inspection of the pleadings and proceedings and without inspection of the evidence." La. C. Cr. P. art. 920(2).

In the instant case, the record does not reflect that the trial court ever ruled on defendant's motion for postverdict judgment of acquittal. Although the minutes from defendant's sentencing hearing state that the trial court ordered for any outstanding motions to "be moot at this time," there is no such declaration in the transcript of defendant's sentencing hearing. Where there is a discrepancy between the minutes and the transcript, the transcript must prevail. State v. Lynch, 441 So. 2d 732, 734 (La. 1983).

Louisiana Code of Criminal Procedure article 821(A) provides that "[a] motion for a post verdict judgment of acquittal must be made and disposed of before sentence." (Emphasis added.) On appeal, defendant did not raise the issue of the trial court's apparent failure to rule on his motion for postverdict judgment of acquittal. Nevertheless, it is preferred, and the statutory provisions require that the trial court rule on the merits of an application for a postverdict judgment of acquittal before imposing sentence on a defendant. State v. Magee, 496 So. 2d 562, 563 (La. App. 1st Cir. 1986). We further note that the attorney who represented defendant at trial and filed defendant's motion for postverdict judgment of acquittal did not represent defendant at the time of his sentencing and does not represent defendant in this appeal.³

3 In total, defendant has been represented by at least three separate attorneys in the instant matter.
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Therefore, we vacate the sentence imposed upon defendant and remand this matter to the trial court for a disposition of this outstanding motion. We pretermit any discussion of the assignments of error raised by defendant in this appeal.

SENTENCE VACATED; REMANDED WITH INSTRUCTIONS.