Opinion
KA20-267
10-07-2020
STATE OF LOUISIANA v. RUSSELL McCUTHEON
Sherry Watters Louisiana Appellate Project P. O. Box 58769 New Orleans, LA 70158-8769 (504) 723-0284 COUNSEL FOR DEFENDANT/APPELLANT: Russell McCutheon M. Bofill Duhe District Attorney, 16th JD W. Claire Howington Assistant District Attorney, 16th JD 300 Iberia St., #200 New Iberia, LA 70560 (337) 369-4420 COUNSEL FOR PLAINTIFF/APPELLEE: State of Louisiana
NOT DESIGNATED FOR PUBLICATION
APPEAL FROM THE SIXTEENTH JUDICIAL DISTRICT COURT PARISH OF IBERIA, NO. 16-0734
HONORABLE VINCENT JOSEPH BORNE, DISTRICT JUDGE
VAN H. KYZAR JUDGE
Court composed of John D. Saunders, Elizabeth A. Pickett and Van H. Kyzar, Judges.
CONVICTIONS AND SENTENCES VACATED. PROSECUTION ABATED FROM INCEPTION.
Sherry Watters
Louisiana Appellate Project
P. O. Box 58769
New Orleans, LA 70158-8769
(504) 723-0284
COUNSEL FOR DEFENDANT/APPELLANT:
Russell McCutheon M. Bofill Duhe
District Attorney, 16th JD
W. Claire Howington
Assistant District Attorney, 16th JD
300 Iberia St., #200
New Iberia, LA 70560
(337) 369-4420
COUNSEL FOR PLAINTIFF/APPELLEE:
State of Louisiana
KYZAR, Judge.
Defendant, Russell McCutheon, was charged by bill of information with aggravated battery, a violation of La.R.S. 14:34, illegal possession of stolen firearms, a violation of La.R.S. 14:69.1, possession of a firearm or carrying a concealed weapon by a convicted felon, a violation of La.R.S. 14:95.1, and illegal use of weapons or dangerous instrumentalities, a violation of La.R.S. 14:94. Defendant subsequently entered an open-ended guilty plea to aggravated battery and possession of a firearm by a convicted felon in exchange for the State's dismissal of the remaining charges and agreement not to file a habitual offender bill. Defendant was subsequently sentenced to serve ten years at hard labor for each offense with the sentences to run concurrently. He filed a motion to reconsider sentence, which was denied by the trial court. On October 4, 2018, Defendant filed a motion for appeal, which was granted by the trial court. The record was lodged with this Court on May 29, 2020.
On March 20, 2020, Defendant died. As a result of the death of Defendant, the State filed a "Motion to Vacate Convictions and Sentences Upon Notice of Defendant's Death" on August 7, 2020, and Defendant's attorney filed a "Motion for Abatement Ab Initio" on August 13, 2020. Subsequently the State provided this Court with a copy of Defendant's death certificate.
The State notes the certificate spells Defendant's last name as "McCutcheon" instead of "McCutheon," but otherwise, the information on the death certificate, such as address, date of birth, and social security number, match the information in the State's file.
The State's and defense counsel's motions cite cases such as State v. Bowden, 12-1352 (La.App. 3 Cir. 1/9/13), 106 So.3d 308, and State v. Hamilton, 370 So.2d 874 (La.1979), in support of their assertion that the convictions and sentences should be vacated and the proceedings abated from their inception. Examination of the law and cited jurisprudence confirms that relief is due based on the facts in this case. Accordingly, Defendant's convictions and sentences are vacated and all proceedings in this prosecution are abated from their inception.