Opinion
No. 2010 KA 2254.
June 10, 2011. NOT DESIGNATED FOR PUBLICATION
APPEALED FROM THE TWENTY-SECOND JUDICIAL DISTRICT COURT IN AND FOR THE PARISH OF ST. TAMMANY, LOUISIANA TRIAL COURT NUMBER 488, 610 HONORABLE PETER J. GARCIA, JUDGE.
Walter P. Reed, District Attorney, Covington, LA, and Kathryn W. Landry, Baton Rouge, LA, Attorneys for State — Appellee.
Frank Sloan, Mandeville, LA, Attorney for Defendant — Appellant Danielle Renee Thompson.
BEFORE: CARTER, C.J., GAIDRY AND WELCH, JJ.
The defendant, Danielle Renee Thompson, was charged by bill of information with theft of property having a value amounting to over $500.00, a violation of La.R.S. 14:67. She pled not guilty and, following a trial by jury, was found guilty as charged. After denying the defendant's motions for new trial and for post-verdict judgment of acquittal, the trial court sentenced the defendant to ten years with the Department of Corrections, but suspended the sentence and placed her on probation for five years. The defendant was ordered to pay restitution to the victim in the amount of $3,700.00 within six months. The defendant now appeals, arguing in two assignments of error that the trial court imposed an illegally excessive sentence and failed to advise her of the delays for applying for post-conviction relief. For the following reasons, we affirm the conviction, but vacate the sentence, and remand this matter to the trial court for resentencing.
A sentence to the Department of Corrections is necessarily a sentence at hard labor. See La.R.S. 15:824C; Rochon v. Blackburn, 97-2799, p. 4 (La. App. 1st Cir. 12/28/98), 727 So.2d 602, 604.
FACTS
On April 3, 2010, Paul Cousin purchased several items at the Jubilee gas station in Slidell, Louisiana, and then returned home. Several hours later, he realized his wallet was missing. It was later discovered that he had left his wallet lying open on the counter at the gas station. Shortly after he left the gas station, the defendant entered the building and stood in line at the counter to buy cigarettes. After seeing the wallet, she knocked it to the floor, and then bent down and picked it up. Next, she walked out of the gas station, removed the cash from the wallet, and threw it away. At trial, the defendant admitted taking the wallet, but claimed it contained only $100.00 in cash. Mr. Cousin testified there was $3,700.00 in cash inside the wallet.
REVIEW FOR ERROR
In reviewing the record for error pursuant to La.C.Cr.P. art. 920(2), we have discovered that the trial court did not wait the required twenty-four hours after the denial of the defendant's motions for new trial and for post-verdict judgment of acquittal before imposing sentence, as required by La.C.Cr.P. art. 873. Nothing in the record reflects that the defendant waived this delay. Moreover, for her theft conviction, the defendant was exposed to a non-mandatory sentence, and has challenged the sentence imposed on appeal.
Louisiana Code of Criminal Procedure article 873 does not explicitly require a twenty-four hour delay in sentencing after the denial of a motion for a post-verdict judgment of acquittal, as it does after the denial of a motion for new trial. However, this court previously has applied the twenty-four hour delay required by Article 873 to motions for a post-verdict judgment of acquittal. See State v. Coates, 2000-1013, p. 6 (La. App. 1st Cir. 12/22/00), 774 So.2d 1223, 1226; State v. Jones, 97-2521, p. 2 (La. App. 1st Cir. 9/25/98), 720 So.2d 52, 53.
In State v. Augustine, 555 So.2d 1331, 1333-1334 (La. 1990), the Supreme Court held that a trial court's failure to observe the twenty-four hour delay is not harmless error if the defendant challenges the sentence on appeal. Therefore, given the circumstances present, we must vacate the defendant's sentence and remand the case to the trial court for resentencing. See Augustine, 555 So.2d at 1334-1335; State v. Denham, 2001-0400, p. 5 (La. App. 1st Cir. 12/28/01), 804 So.2d 929, 932,writ denied, 2002-0393 (La. 1/24/03), 836 So.2d 37; State v. Claxton, 603 So.2d 247, 250 (La. App. 1st Cir. 1992). Because Augustine requires us to vacate the defendant's sentence, we pretermit consideration of the defendant's assignments of error, which both relate to her sentence. However, we note that, when resentencing the defendant, the trial court should advise her of the time limitations provided by La.C.Cr.P. art. 930.8(A) for applying for post-conviction relief.
CONCLUSION
For the foregoing reasons, the defendant's conviction is affirmed, the sentence is vacated, and the matter is remanded for resentencing.
CONVICTION AFFIRMED; SENTENCE VACATED AND REMANDED FOR RESENTENCING.