03 April 2008

third circuit: ninth judicial district court judge john c. davidson 'abused [his] discretion'

click here or link to download thirteen page .pdf
third time is the charm...?
excerpt:
In this case, the defendant, Randall J. Morain, entered a plea of guilty to the offenses of vehicular homicide, in violation of La.R.S. 14:32.1(A)(1) and (2), and first degree vehicular negligent injuring, in violation of La.R.S. 14:39.2(A)(1) and (2). Thereafter, he was sentenced to twenty-five years for the vehicular homicide offense, the first eight years to be served without the benefit of probation, parole, or suspension of sentence, and five years for the vehicular negligent injury offense, the sentences to run concurrently. Defendant filed a motion to reconsider the vehicular homicide sentence and was subsequently resentenced to twenty years, with the first eight years to be served without benefit of probation, parole, or suspension of sentence. Defendant then appealed the sentence to this court. We held that his sentence was indeterminate and illegally lenient and remanded the matter to the trial court. State v. Morain, 06-710 (La.App. 3 Cir. 11/2/06), 941 So.2d 720.

On remand, the trial court sentenced Defendant on the vehicular homicide charge to twenty years at hard labor, the first eight years to be served without benefit of probation, parole, or suspension of sentence, imposed a fine of $2,000, and ordered him to participate in a court-approved substance abuse program and a court-approved driver improvement program.

Defendant is now before this court on appeal and alleges that the trial court failed to comply with La.Code Crim.P. art. 894.1(C) in sentencing him and that the maximum sentence imposed by the trial court was cruel, unusual, and excessive, in violation of Article I, § 20 of the Louisiana Constitution of 1974. For the following reasons, we vacate the sentence and remand the matter to the trial court for resentencing.
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Posted by wst... at 17:30

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