KUHN, J.
The defendant, Stanley White, was originally charged by grand jury indictment with vehicular homicide, a violation of La. R.S. 14:32.1. Pursuant to a plea agreement, on July 10, 1995, the defendant pled guilty to a reduced charge of negligent homicide, a violation of La. R.S. 14:32. On December 11, 1995, he was sentenced to twenty-four months at hard labor. On January 8, 1996, the defendant filed a motion to reconsider sentence and requested a stay of execution of sentence The district court granted the request for stay of execution that same day until such time that a hearing was held on the motion to reconsider sentence. On February 12, 1996, the district court denied the motion to reconsider sentence and ordered that the defendant surrender himself to begin serving the sentence previously imposed. On February 14, 1996, the district court granted the defendant's motion for bond pending appeal.
On appeal in an unpublished decision, this court affirmed the defendant's conviction and sentence.
No further action took place until July 19, 2011, when the State filed a motion for execution of sentence. It appears from a show cause order signed by the district court that the parties were ordered to appear on September 26, 2011, for a hearing on the matter. However, the record does not contain a minute entry or transcript from that day.
The State subsequently filed a motion to revoke appeal bond and motion to execute sentence on April 10, 2013. The matter was heard on May 3, 2013, and a motion to quash sentence filed by the defendant was also heard that day. The district court denied the defendant's motion to quash, but nevertheless imposed a new sentence by ordering that the remainder of the defendant's original two-year sentence be suspended and that he be placed on supervised probation for two years, with credit for time served. The State objected to the new sentence and requested a stay of execution of sentence pending its appeal, which the district court granted.
The State now appeals, arguing that the district court did not have the authority to resentence defendant since his original sentence was legal and had already commenced. For the following reasons, we reverse the decision of the district court imposing a new sentence, and remand for consideration of the State's well-founded motion to revoke appeal bond and motion to execute sentence.
Because the defendant entered a guilty plea, the facts were not fully developed. The record establishes that on July 31, 1994, the defendant was the driver of a vehicle involved in a collision resulting in the death of ten-week-old Brittany Deville. In her written reasons for judgment, the district court judge stated that although the defendant was not legally intoxicated under the DWI statute in effect at the time of the offense, he had a blood-alcohol level of .09 grams percent.
In its sole assignment of error, the State argues that the district court did not have the authority to resentence the defendant. Specifically, the State contends that the action of the district court runs counter to the body of law associated with La. C.Cr.P. art. 881 and violates the separation of powers enumerated in the Louisiana Constitution.
Article 881 provides, in part:
Louisiana Revised Statutes 15:566.2 provides that:
Article 881 is inapplicable to the facts of the present case because the sentence for the defendant's felony conviction was at hard labor and the execution of the defendant's sentence had commenced. Upon denying the defendant's motion to reconsider sentence on February 12, 1996, the district court ordered the defendant to surrender himself to the Department of Corrections to begin serving his two-year sentence. Under La. R.S. 15:566.2, execution of the defendant's sentence must be considered as commencing the day after he was sentenced, which was December 12, 1995. We note that the record also indicates that the defendant was actually incarcerated for at least two days prior to the granting of his post-conviction bond. Thus, as the State correctly argues, the district court lacked authority to impose a new sentence on the defendant since execution of his original sentence had commenced, and the defendant had already begun to serve a legal sentence at hard labor.
Moreover, the district court's reduction of a final sentence after it became executory was, in effect, an exercise of the power of commutation. The power of commutation, however, is constitutionally reserved exclusively to the executive branch of state government.
The record does not reveal that the defendant applied for rehearing or took a writ to the Louisiana Supreme Court from the judgment of this court affirming his conviction and sentence. A judgment rendered by an appellate court becomes final when the delay for applying for a rehearing has expired and no application therefor has been made. La. C.Cr.P. art. 922(B). After appeal attempts are exhausted, the district court lacks jurisdiction to take any action in a criminal proceeding other than the actions specified in La. C.Cr.P. art. 916 or "as otherwise provided by law" (such as to handle an application for a writ of habeas corpus or an application for postconviction relief).
Louisiana Code of Criminal Procedure article 916 provides that:
When the original sentence imposed is legal, none of the actions specified in Article 916 confer jurisdiction or authority upon a district court to impose a new sentence after an appeal is taken.
Additionally, we do not find that the defendant was entitled to any credit against his sentence for the time that he spent free. The time that the defendant spent free is analogous to that of an offender out on parole or probation, which are acts of grace to one convicted of a crime. Because they are less restrictive on the offender's freedom than penal incarceration, and are acts of grace to the offender, violations of parole and/or probation have consequences such as no entitlement to credit against the offender's sentence for time spent on probation and/or parole.
For the foregoing reasons, we find that the district court lacked jurisdictional authority and was without a procedural mechanism to impose a new sentence upon defendant. Accordingly, the judgment of the district court imposing a new sentence upon defendant is reversed, and this matter is remanded to the district court for consideration of the State's well-founded motion to revoke appeal bond and motion to execute sentence.
THERIOT, J., concurring and assigning reasons.
This case presents a unique set of circumstances. Both parties raise legitimate arguments in support of their respective positions. However, before we can have a discussion of the separation of powers and the principles of fundamental fairness dictated by the due process clause of the Fourteenth Amendment of the United States Constitution, we must first resolve the issue of the trial court's authority to amend Mr. White's sentence.
I agree that the trial court exceeded its authority and the matter should be remanded. Considerable discussion centered on La. C.Cr.P. art. 881 and when execution of the sentence commences. The majority relies on La. R.S. 15:566.2 to determine the commencement of Mr. White's sentence. However, La. R.S. 15:566.2 does not apply when a prisoner "has been released on bail or perfected a suspensive appeal".
I find that Mr. White's sentence commenced on February 16, 1996. That is the date the trial court remanded Mr. White to the physical custody of the sheriff. The Louisiana Supreme Court has held that the word "execution," as it relates to criminal sentences, is defined as "the process of performing a judgment or sentence of a court". State v. Brown, 451 So.2d 1074, 1078 (La. 1984). In this case, the process of performing the sentence commenced when Mr. White was remanded to the custody of the sheriff. At that point, pursuant to La. C.Cr.P. art 881, the trial court was prohibited from amending the sentence.
I also agree that the facts of this case differ from the facts of the Roberts case.
Pursuant to LA. C.Cr.P. art 881.4(A), it is appropriate to remand this matter to the trial court for further proceedings. Although the trial court's jurisdiction has been divested, the State has filed a motion with the trial court, thereby subjecting the State to the jurisdiction of the trial court as it pertains to the motion to revoke appeal bond and a motion to execute sentence pending. Like any other motion filed before a trial court, the trial court may grant the motion or the trial court may deny the motion. I would advise the trial court to hold a contradictory hearing to allow both parties to argue their well-founded positions. Furthermore, the trial court should provide written reasons to substantiate its denial or granting of the motions. Once a decision is rendered on the State's motions, this court would be in the proper position to discuss the constitutional questions being raised by the parties.
HIGGINBOTHAM, J., Dissents and Assigns Reasons.
First, I acknowledge that the loss of baby Brittany is a terrible tragedy that no parent should have to endure, and I in no way want to diminish that tragedy.
As espoused by the Louisiana Supreme Court in
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In the instant case, the tragic accident occurred nearly twenty years ago when Mr. White was 19 years old. After his trial and appeal, Mr. White had no notice to report to the sheriff's office on a particular date and no arrest warrant was ever sought by the State. Mr. White did not violate any conditions of his bond. Moreover, there has been no explanation for the State's delay in executing the sentence. Further, since his conviction, Mr. White obtained a bachelor's degree, a realtor's license, full-time employment, has had no arrests and took no steps to prevent the lawful execution of his sentence.
Under the unusual circumstances of this case, considering the rationale of