CHEHARDY, C.J.
On September 28, 2023, a jury convicted defendant, Mishanda L. Reed, of attempted second degree kidnapping, a responsive verdict, and found her not guilty of aggravated battery. Defendant subsequently retained new counsel and filed a motion to continue sentencing. On October 12, 2023, new counsel for defendant filed both a motion for new trial and a motion in arrest of judgment, with a single memorandum submitted in support of both motions.
1
On October 20, 2023, at the conclusion of the hearing on defendants post-trial motions, the trial court denied the motion for new trial, but there is no written or oral ruling in the record that addresses defendants motion in arrest of judgment. That same day, defense counsel waived sentencing delays and the trial court sentenced defendant to eleven years imprisonment at hard labor with credit for time served.
On December 13, 2023, the trial court denied defendants motion to reconsider the sentence. Defendant subsequently filed a “Notice of Appeal,” which the trial court granted, and the record was lodged in this Court on March 8, 2024.
Upon review of the record, we find the trial court inadvertently sentenced defendant without having resolved her outstanding motion in arrest of judgment. La. C.Cr.P. art. 861 states, in pertinent part: “A motion in arrest of judgment must be filed and disposed of before sentence.” When a trial court sentences a defendant before it has ruled on a motion in arrest of judgment, this Court lacks appellate jurisdiction. As such, the matter requires us to vacate defendants sentence, dismiss the present appeal without prejudice, and remand for a ruling on the outstanding motion in arrest of judgment and for subsequent resentencing, if necessary. See, e.g., State v. Wilson, 96-251 (La. App. 5 Cir. 10/1/96), 683 So.2d 775, 777; see also State v. Anderson, 99-1407 (La. App. 4 Cir. 1/26/00), 753 So.2d 321, 324. DECREE
Accordingly, pursuant to Uniform Rules – Courts of Appeal, Rule 2-16.2(A)(1), we vacate defendants sentence, dismiss the present appeal without prejudice, and remand for a ruling on defendants outstanding motion in arrest of judgment and for resentencing, if necessary. Defendant may again appeal her conviction and sentence in the event of an adverse ruling.
SENTENCE VACATED; APPEAL DISMISSED WITHOUT PREJUDICE; REMANDED WITH INSTRUCTIONS
FIFTH CIRCUIT
101 DERBIGNY STREET (70053)
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GRETNA, LOUISIANA 70054
www.fifthcircuit.org
SUSAN M. CHEHARDY CHIEF JUDGE
FREDERICKA H. WICKER
JUDE G. GRAVOIS
MARC E. JOHNSON
STEPHEN J. WINDHORST
JOHN J. MOLAISON, JR.
SCOTT U. SCHLEGEL
TIMOTHY S. MARCEL JUDGES
CURTIS B. PURSELL CLERK OF COURT
SUSAN S. BUCHHOLZ CHIEF DEPUTY CLERK
LINDA M. WISEMAN FIRST DEPUTY CLERK
MELISSA C. LEDET DIRECTOR OF CENTRAL STAFF
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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 2-16.4 AND 2-16.5 THIS DAY APRIL 23, 2024 TO THE TRIAL JUDGE, CLERK OF COURT, COUNSEL OF RECORD AND ALL PARTIES NOT REPRESENTED BY COUNSEL, AS LISTED BELOW:
24-KA-120
CURTIS B. PURSELL CLERK OF COURT
E-NOTIFIED
24TH JUDICIAL DISTRICT COURT (CLERK)
HONORABLE SHAYNA BEEVERS MORVANT (DISTRICT JUDGE)
THOMAS J. BUTLER (APPELLEE)
RALPH S. WHALEN, JR. (APPELLANT)
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FOOTNOTES
1
. La. C.Cr.P. art. 859 provides that a court shall arrest the judgment when, among other things, the “verdict is not responsive to the indictment, or is otherwise so defective that it will not form the basis of a valid judgment.”
SUSAN M. CHEHARDY CHIEF JUDGE