STATE OF LOUISIANA VERSUS TORY N. CLARK
Annotate this Case
Download PDF
STATE OF LOUISIANA NO. 15-KA-357 VERSUS FIFTH CIRCUIT TORY N. CLARK COURT OF APPEAL STATE OF LOUISIANA ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH OF JEFFERSON, STATE OF LOUISIANA NO.1 0-4853, DIVISION "A" HONORABLE RAYMOND S. STEIB, JR., JUDGE PRESIDING NOVEMBER 19,2015 FILED NOV 1 9 2015 ROBERT A. CHAISSON JUDGE Panel composed of Judges Susan M. Chehardy, Fredericka Homberg Wicker, and Robert A. Chaisson PAUL D. CONNICK, JR. DISTRICT ATTORNEY Twenty-Fourth Judicial District Parish of Jefferson TERRY M. BOUDREAUX MATTHEW CAPLAN MATTHEWR. CLAUSS SHANNONK. SWAIM ASSISTANT DISTRICT ATTORNEYS 200 Derbigny Street Gretna, Louisiana 70053 COUNSEL FOR PLAINTIFF/APPELLEE BRUCE G. WHITTAKER ATTORNEY AT LAW Louisiana Appellate Project 1215 Prytania Street Suite 332 New Orleans, Louisiana 70130 COUNSEL FOR DEFENDANT/APPELLANT SENTENCE VACATED; MATTER REMANDED Defendant, Tory Clark, appeals his second degree murder conviction and sentence. For the reasons that follow, we vacate defendant's sentence and remand the matter to the trial court for further proceedings. PROCEDURAL HISTORY On September 30,2010, a Jefferson Parish Grand Jury returned an indictment charging defendant with second degree murder, in violation of La. R.S. 14:30.1. At the October 4,2010 arraignment, defendant pled not guilty. The case proceeded to trial before a twelve-person jury on January 27, 2015. After considering the evidence presented, the jury, on January 30,2015, found defendant guilty as charged. On February 11,2015, defendant filed a motion for post-verdict judgment of acquittal alleging that the evidence presented at trial was insufficient to support the jury verdict. He also filed a motion for appeal that was granted on February 12, -2 2015. Subsequent to the granting of the appeal, defendant, on April 2, 2015, filed a motion for new trial on the basis that the verdict was contrary to the law and evidence, the trial court committed prejudicial error when it allowed defendant to demonstrate before the jury how he held a weapon, and the ends ofjustice would be served by granting a new trial. On that same date, the court denied defendant's motion for post-verdict judgment of acquittal and motion for new trial after entertaining brief arguments by counsel. Following the denial of these two motions, the court conducted a sentencing hearing pursuant to La. C.Cr.P. art. 878.1 and thereafter took the matter under advisement. On April 14, 2015, the trial judge sentenced defendant to life imprisonment with eligibility for parole after thirty-five years. DISCUSSION Pursuant to La. C.Cr.P. art. 916, a trial court is divested of jurisdiction upon the granting of a defendant's motion for appeal. Once the trial court is divested of jurisdiction, it may take only certain specified actions, none of which include ruling on a post-trial motion or imposing sentence (except for imposing sentence pursuant to a conviction under the Habitual Offender Law as set forth in La. R.S. 15:529.1.)1 State v. Johnson, 13-75 (La. App. 5 Cir. 10/09113),128 So.3d 325, 327. 1 La. C.Cr.P. art. 916 provides as follows: The jurisdiction of the trial court is divested and that of the appellate court attaches upon the entering of the order of appeal. Thereafter, the trial court has no jurisdiction to take any action except as otherwise provided by law and to: (1) Extend the return day of the appeal, the time for filing assignments of error, or the time for filing per curiam comments in accordance with Articles 844 and 919. (2) Correct an error or deficiency in the record. (3) Correct an illegal sentence or take other appropriate action pursuant to a properly made or filed motion to reconsider sentence. (4) Take all action concerning bail permitted by Title VIII. (5) Furnish per curiam comments. (6) Render an interlocutory order or a definitive judgment concerning a ministerial matter not in controversy on appeal. (7) Impose the penalty provided by Article 844. (8) Sentence the defendant pursuant to a conviction under the Habitual Offender Law as setforth in R.S. 15:529.1. -3 Thus, it is clear that upon the granting of defendant's motion for appeal on February 12, 2015, the trial court was divested ofjurisdiction to subsequently sentence defendant or to rule on his motions for post-verdict judgment of acquittal and new trial. We acknowledge that in some instances, appellate courts have considered such jurisdictional errors to be either "cured" or harmless and, in the interest of judicial economy, have ruled on the merits of the arguments presented in the defendants' appeals. See State v. Johnson, supra, and the cases cited therein. However, under the present circumstances, where some of the grounds raised in the post-trial motions are also raised by defendant on appeal, we cannot ignore the fact that the trial court lacked jurisdiction at the time it sentenced defendant and ruled on his post-trial motions. In State v. Johnson, supra, this Court was presented with a similar jurisdictional problem and found that a remand was warranted. In that case, the defendant was convicted and then filed a motion for appeal, which the trial court granted the next day. Approximately one week later, the defendant filed a motion for new trial that was denied that same day. In his motion for new trial, the defendant raised an issue that he also raised on appeal. This Court found that under the particular circumstances of that case, where the trial court, after having been divested ofjurisdiction, denied the defendant's motion for new trial, the substance of which he then raised on appeal, a remand was proper. This Court explained that before this Court addresses the merits of an issue that the trial court improperly considered, in light of due process considerations, the defendant was entitled to have those merits considered by a trial court properly vested with jurisdiction. This Court determined that although equitable considerations of judicial economy were as pertinent here as in other cases, its case was distinguishable because it presented a definite issue of due process concern. -4 Consequently, this Court vacated the defendant's underlying and enhanced sentences and remanded the matter to the trial court to rule on the defendant's motion for new trial, and if denied, to resentence the defendant. Likewise in the present case, after the court granted defendant's motion for appeal on February 12,2015, it was divested of jurisdiction to sentence defendant or to rule on defendant's post-trial motions. In accordance with Johnson and the reasoning set forth therein, we vacate defendant's sentence and remand this matter to the trial court to rule on defendant's post-trial motions, and if denied, to resentence defendant. 2 Further, once defendant has been resentenced, he has the right to appeal his conviction and sentence. SENTENCE VACATED; MATTER REMANDED 2 Under the circumstances of this case, we pretermit discussion of defendant's assignments of error. -5 SUSAN M. CHEHARDY CHERYL Q. LANDRIEU CHIEF JUDGE CLERK OF COURT MARY E. LEGNON FREDERICKA H. WICKER JUDE G. GRAVOIS MARC E. JOHNSON ROBERT A. CHAISSON ROBERT M. MURPHY STEPHEN J. WINDHORST HANS J. L1LJEBERG CHIEF DEPUTY CLERK SUSAN BUCHHOLZ FIRST DEPUTY CLERK FIFTH CIRCUIT 101 DERBIGNY STREET (70053) JUDGES MELISSA C. LEDET DIRECTOR OF CENTRAL STAFF POST OFFICE BOX 489 GRETNA, LOUISIANA 70054 (504) 376-1400 (504) 376-1498 FAX www.fifthcircuit.org NOTICE OF JUDGMENT AND CERTIFICATE OF DELIVERY I CERTIFY THAT A COpy OF THE OPINION IN THE BELOW-NUMBERED MATTER HAS BEEN DELIVERED IN ACCORDANCE WITH Uniform Rules - Court of Appeal, Rule 2-20 THIS DAY NOVEMBER 19. 2015 TO THE TRIAL JUDGE, COUNSEL OF RECORD AND ALL PARTIES NOT REPRESENTED BY COUNSEL, AS LISTED BELOW: . \ I) i' I /1 (). f ''---/' l. .• ' \ \/vvS--£.,t J',1./.(1 -'!rJ....- l~i/ 'i Jj/ . i I CI4ERYI! Q. tANDRlEU CLERK OF COURT 15-KA-357 E-NOTIFIED TERRY M. BOUDREAUX MATTHEW CAPLAN MAILED BRUCE G. WHITTAKER ATTORNEY AT LAW LOUISIANA APPELLATE PROJECT 1215 PRYTANIA STREET SUITE 332 NEW ORLEANS, LA 70130 HON. PAUL D. CONNICK, JR. DISTRICT ATTORNEY MATTHEW R. CLAUSS SHANNON K. SWAIM ASSISTANT DISTRICT ATTORNEYS TWENTY -FOURTH JUDICIAL DISTRICT 200 DERBIGNY STREET GRETNA, LA 70053 /
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
