State of Louisiana v. Shawn Fitzgerald Kennedy (Appeal remanded)

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Judgment rendered May 14, 2014. Application for rehearing may be filed within the delay allowed by Art. 922, La. C.Cr.P. No. 49,036-KA COURT OF APPEAL SECOND CIRCUIT STATE OF LOUISIANA ***** STATE OF LOUISIANA Appellee versus SHAWN FITZGERALD KENNEDY Appellant ***** Appealed from the First Judicial District Court for the Parish of Caddo, Louisiana Trial Court No. 308,175 Honorable Craig Owen Marcotte, Judge ***** LOUISIANA APPELLATE PROJECT By: Douglas Lee Harville Counsel for Appellant CHARLES REX SCOTT, II District Attorney Counsel for Appellee KARELIA R. STEWART JESSICA DIANE CASSIDY CLOYCE CLARK, III Assistant District Attorneys ***** Before CARAWAY, DREW and PITMAN, JJ. DREW, J. Shawn Fitzgerald Kennedy urges only one issue in this appeal. He attacks the constitutionality of La. R.S. 14:95.11 as being contrary to Const. Art. I, § 11, which was amended in 2012.2 Defendant s challenge to the statute, however, is not properly before us. The issue was not pled or litigated in the trial court, violating clear precedent. See State v. Hatton, 2007-2377 (La. 7/1/08), 985 So. 2d 709, and Vallo v. Gayle Oil Co., Inc., 94-1238 (La. 11/30/94), 646 So. 2d 859.3 In addition, the Louisiana Attorney General has never been served and has not yet participated in any way. See La. R.S. 13:4448; La. R.S. 49:257(C); La. C.C.P. art. 1880. We must remand this case to the trial court for further proceedings. DECREE REMANDED. 1 Possession of firearm or carrying concealed weapon by a person convicted of certain felonies 2 The Louisiana Supreme Court is considering this same issue in the pending writ applications of State v. Taylor, 2014-0209, and State v. Eberhardt, 2013-2306. 3 See also, State in Interest of D.W., 13-114 (La. App. 5 Cir. 9/18/13), 125 So. 3d 1180, writ denied, 2013-2478 (La. 4/4/14), 2014 WL 1423628.

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