State v. Arabie , 502 So. 2d 565 ( 1987 )

502 So.2d 565 (1987)

STATE of Louisiana
v.
Shelby ARABIE.

No. 86-K-2284.

Supreme Court of Louisiana.

February 20, 1987. Reconsideration Denied April 3, 1987.

Denied.

LEMMON, J., concurs with reasons.

DIXON, C.J., and CALOGERO, J., would grant the writ.

LEMMON, Justice, concurring in the Denial of the Application.

The double jeopardy problem encountered in Hudson v. Louisiana, 450 U.S. 40, 101 S.Ct. 970, 67 L.Ed.2d 30 (1981), is not present here. The trial judge reviewed the jury verdict (on a post-verdict motion for acquittal) as a question of law and rendered a judgment of conviction on the lesser included responsive offense of manslaughter. La.C.Cr.P. art. 821 C. The court of appeal further reviewed the trial court's action as a question of law and properly reinstated the verdict of guilty of second degree murder. This action by the court of appeal was not a retrial of the defendant and did not constitute a double jeopardy violation.