State Of Louisiana VS Brett Gerald

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STATE UF LOiJISIANA CO R'I' ( F APPEA,I, FIIZST CIR' LTIT C3. 2013 KA ] i& i STAT, S. ANA OF` LC VERSUS BRETT GERALD Judgment Rendered: Y 2 p'` On Appeal frcm h 20th Judicial Distrzct Ceurt, In and far the Parish of East Feliciana; State c f Louisiana Trial 4 QUrt No. 12- CR-410 The Honorable WaJli m G. Caamichael, Judge Preszding Samuel D' Aquilla Attomeys for Appellee, District State of Louisiana Attorney Stewart B. Hughes Special Assistant District Attorney Clinton, Louisiana Thomas C. Damico Attorneys for Defendant/Appellant, Roberta M. Vath Brett Gerald Baton Rouge, Louisiana BEFORE: ' c c.. HIPPLE, C. J. WELCH, AI' D CRAIN, JJ. .,,..:. .... B-` w. CRAIN, J. The defendant, Brztt ( ie vehicular homicide, ns violat la. ? o# vd guil v a Louisiana R charrged to seven counts of vised Statuze 14: 32. 1. He was originally sentenced on each count to ten years imprisonment at hard labor, the first five years to be served without probation; parole, or suspension of sentences, to pay a $ 2,000,00 fine, and to attend a substance abuse program, with the sentences to run consecutively. The trial court granted the defendant' s motion to reconsider sentences, vacated the ariginal sentences, and resentenced the defendant on each count to five years imprisonment at hard labor, without probation, parole, or suspension of sentence, to pay a $ 2,000. 00 fine, and to attend a substance abuse program, with the sentences to run consecutively.' The defendant now appeals, arguing that the trial court ea°red in sentencing him to consecutive terms of imprisonment on each count. We affirm the defendant' s convictions and sentences. FACTS Because the defendant pled guilty, the facts of the case were not fully developed at a triaL The defendant' s arrest xeport indicates that on May 30, 2012, the defenciant' s I)odge Ram trucic crossed the center line of Louisiana Highway 67, in East Felici.ana Parish, and collided with a Mercury Grand Marquis driven by Brenda Gaines. Gaines and her six passengers, Angela Mosely, Denise Gaines, 17iamond Johnson, Jyren. Johnson, Willie Gaines, In granting the motion to : econsider sentences, the trial court stated it based its ruling on the supreme court' s decision in State v. Oliphant, 12- 1176 ( La. 3/ 19/ 13), 113 So. 3d 165, which was decided seven days after the defendanYs original sentencing. In Oliphant, the court held vehicular homicide to be a crime of violence, requiring that a defendant convicted of that crime serve 85% of his full sentence before becoming eligible fox parole. Oliphant, ll3 So. 3d at 173- 174; La. R.S. 15: 574. 4B( 1). The trial court stated that it did not intend for the defendant to spend the rest of his life in prison, which would be the pxactical effect of the original sentences in light of the Oliphant decision. Thus, the trial court imposed new sentences that it stated would result in approximately the same pazole eligibiliry date and good time discharge date as the prior sentences would have but for the Oliphant decision. 2 and Roderick Johnson, were killed. The defendant was charged with killing seven individuals while driving with a blood alcokol level of . 15 grams percent. The defendant pled guilty as charged to seven counts of vehicular homicide. ASSIG_ 7E' TT CiF EIZROR N In his sole f errc r, tlaz d.efendant a ga s that the trial assignmzn court erred in sentencing him to consecutive terms of imprisonment on each count when all counts and charges arose out of a single act. Louisiana Code of Criminal Procedure article 881. 1A provides that i] n felony cases, within thirty days following the imposition of sentence or within such longer period as the trial court may set at sentence, the state or the defendant may make or file a motion to reconsider sentence." Article 881. 1E provides: Failure to make or file a motion to reconsider sentence or to include a specific ground upon which a motion to reconsider sentence may be based, including a claim of excessiveness, shall preclude the state or the defencYant from rsising an objection to the sentence or from urging any ground not raised in the motion on appeal or review. One purpose of the motion to reconsider sentence is to allaw the defendant to raise any errors that rr_ have; ocaurred ir sen4encing while Lhe district ay court judge still has jurisdict on to change or correct the sentence. The defendant may point out such errors or deficiencies, or may present argument or evidence not considered in the original sentencing, thereby preventing the necessity of a remand for resentencing. State v. Mims, 619 So. 2d 1059, 1059 ( La. 1993) ( per curiam). When the trial court grants relief under Artacle 881. 1 and resentences the defendant, the result is the i position of a new sentence. Since a new sentence is imposed; Article 881. 1 requires that a renewed motion for 3 reconsideration be made or fi?rd, specify n ± h gmunds far objection to the State new sentence_ v Smzth, 3 3? I_ A. a. 1 C r. 17,104), $ 79 So. 2d 179, 183 ( en bar c ¢j. In this case, aft r th trIla1 cs a t grarsted the defendant' s nnotion to reconsider his original serzti x, ces, : t resen zf ced th clefendan n Ma} 14, The defendant did not make or fite an oral or writk n motion to 2013. reconsider the new sentences. Although the defendant complained that his new sentences were excessive in his motion for appeal, that motion was merely a request that the trial court grant an appeal, thereby invoking the jurisdiction of this court to change or correct the sentences. It did not request that the trial court change or correc. the sentences while it still had t jurisdiction. The motion fer appeal is not a substitute for a mo± ion to reconsider sentence and does not satisfy the rzquirements of Article 881. 1? Since the defendant did not make or file an ral or wri? te motion to reconsider the new sentences impose i, he dxd not preserve appel?ate review of the new sentences and is procedurally barred from having his challenge to the new sentences reviewed by this court on appeal. See Smith, 879 So. 2d at 183. CONVICTIONS AND SENTENCES AFFIRMED. 2 Louisiana Code of Criminal Procedure article 9i6 provides that the jurisdzction of the trial court is divested and that of the appellate court attaches upon entry of the order of appeal, except to take certain enumerated actions, including correction of an illegal sentence or taking other action pursuant to a properly made or fled motion to reconsider sentence. 4

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