State of Louisiana Versus Errol Victor, Sr. ( 2020 )

STATE OF LOUISIANA NO. 15-KA-339
VERSUS FIFTH CIRCUIT
ERROL VICTOR, SR. COURT OF APPEAL
STATE OF LOUISIANA
June 19, 2020
Mary E. Legnon
Chief Deputy Clerk
ON APPLICATION FOR REHEARING
Panel composed of Susan M. Chehardy,
Jude G. Gravois, and Marc E. Johnson
GRANTED IN PART; DENIED IN PART
JGG
SMC
MEJ
STATE OF LOUISIANA NO. 15-KA-339
VERSUS FIFTH CIRCUIT
ERROL VICTOR, SR. COURT OF APPEAL
STATE OF LOUISIANA
ON APPLICATION FOR REHEARING
BY THE STATE OF LOUISIANA
Considering the Application for Rehearing and Motion to Vacate
Remand Order for Lack of Jurisdiction, filed on May 21, 2020 by the State
of Louisiana, and the opposition thereto filed by defendant, Errol Victor, Sr.,
as supplemented, we address and render judgment on the individual issues
raised in the Application for Rehearing and Motion to Vacate Remand Order
as follows:
The first issue raised in the State’s Application for Rehearing and
Motion to Vacate Remand Order for Lack of Jurisdiction is whether this
Court lacked—and continued to lack—jurisdiction over this matter until the
judgment and mandate were issued by the United States Supreme Court in
this case, pursuant to United States Supreme Court Rule 45, on May 29,
2020.1 See Victor v. Louisiana, 19-5989, --- U.S. --- (2020), 2020 WL
1United States Supreme Court Rule 45 (U.S. Sup. Ct. Rule 45, 28 U.S.C.A.) provides as
follows:
1. All process of this Court issues in the name of the President of the United
States.
2. In a case on review from a state court, the mandate issues 25 days after entry
of the judgment, unless the Court or a Justice shortens or extends the time, or
unless the parties stipulate that it issue sooner. The filing of a petition for
rehearing stays the mandate until disposition of the petition, unless the Court
orders otherwise. If the petition is denied, the mandate issues forthwith.
3. In a case on review from any court of the United States, as defined by 28
U.S.C. § 451, a formal mandate does not issue unless specially directed;
instead, the Clerk of this Court will send the clerk of the lower court a copy
of the opinion or order of this Court and a certified copy of the judgment.
The certified copy of the judgment, prepared and signed by this Court’s
Clerk, will provide for costs if any are awarded. In all other respects, the
provisions of paragraph 2 of this Rule apply.
1
1978934 (Mem.) (U.S. Apr. 27, 2020). On May 29, 2020, the United States
Supreme Court formally issued its judgment and mandate in this case. Upon
review, although this Court may have temporarily lacked jurisdiction under
United States Supreme Court Rule 45 to act upon defendant’s Motion to
Remand, filed on May 1, 2020 and granted by this Court on May 14, 2020,
until the United States Supreme Court formally issued its judgment and
mandate in this case on May 29, 2020, we find that because the United
States Supreme Court has now formally issued its judgment and mandate in
this case, this issue is now moot. In any event, we hereby GRANT THIS
APPLICATION FOR REHEARING IN PART AS TO THIS ISSUE and
affirm and reissue our previous ruling of May 14, 2020 in full, except as
hereinafter clarified and supplemented.
The second issue raised in the State’s Application for Rehearing and
Motion to Vacate Remand Order for Lack of Jurisdiction is whether in its
ruling in this case, the United States Supreme Court vacated defendant’s
conviction, or whether it merely vacated the prior judgment of this Court and
remanded the matter to this Court for consideration of whether, and to what
extent, the Supreme Court’s decision in Ramos v. Louisiana, No. 18-5924,
590 U.S. ---, 140 S.Ct. 1390, --- L.Ed.2d ---, (2020), 2020 WL 1906545,
affects this matter. Our previous Order recognized that, in compliance with
the Supreme Court’s directive in Ramos, defendant is entitled to a new trial,
but did not specifically vacate defendant’s conviction and sentence. In a
separate opinion issued this day on remand of this matter from the United
States Supreme Court, for the reasons stated therein, we have found that in
light of the Supreme Court’s decision in Ramos, defendant is entitled to a
new trial, and accordingly, we vacated defendant’s conviction and sentence
and remanded the matter to the trial court for further proceedings consistent
2
with said opinion. In order to clarify and supplement our previous Order, for
the reasons stated in our previous Order and in our separate opinion issued
this day on remand of this matter from the United States Supreme Court, we
hereby GRANT THIS APPLICATION FOR REHEARING IN PART AS
TO THIS ISSUE, and confirm that defendant’s conviction and sentence have
been vacated and that the matter has been remanded to the trial court for
further proceedings.
The third issue raised in the State’s Application for Rehearing and
Motion to Vacate Remand Order for Lack of Jurisdiction is whether
defendant’s petition for certiorari to the United States Supreme Court was
timely. The United States Supreme Court is the proper court to determine
whether defendant’s petition for certiorari to the United States Supreme
Court was timely and whether its jurisdiction was properly invoked in this
case. Accordingly, we hereby DENY THE APPLICATION FOR
REHEARING IN PART AS TO THIS ISSUE.
The fourth and final issue raised in the State’s Application for
Rehearing and Motion to Vacate Remand Order for Lack of Jurisdiction is
whether the issue of defendant’s non-unanimous jury verdict has been
properly raised in this Court. As we stated and found in our previous Order,
although defendant did not specifically challenge the non-unanimous jury
verdict by assignment of error in his appeal to this Court, the jury verdict is
considered part of our errors patent review, and as part of our errors patent
review in our separate opinion issued this day on remand of this matter from
the United States Supreme Court, we have found defendant’s non-
unanimous jury verdict to be a patent error and consequently granted
defendant relief in accordance with Ramos, as hereinabove stated.
3
Accordingly, we hereby DENY THE APPLICATION FOR REHEARING
IN PART AS TO THIS ISSUE.
CONCLUSION
For the foregoing reasons, the State’s Application for Rehearing and
Motion to Vacate Remand Order for Lack of Jurisdiction is granted in part
and denied in part, and the matter is remanded to the trial court for further
proceedings consistent with this Order and with our separate opinion issued
this day on remand of this matter from the United States Supreme Court.
GRANTED IN PART; DENIED IN PART
4
SUSAN M. CHEHARDY CURTIS B. PURSELL
CHIEF JUDGE CLERK OF COURT
MARY E. LEGNON
FREDERICKA H. WICKER
CHIEF DEPUTY CLERK
JUDE G. GRAVOIS
MARC E. JOHNSON
ROBERT A. CHAISSON SUSAN BUCHHOLZ
STEPHEN J. WINDHORST
FIRST DEPUTY CLERK
HANS J. LILJEBERG
JOHN J. MOLAISON, JR. FIFTH CIRCUIT
MELISSA C. LEDET
JUDGES 101 DERBIGNY STREET (70053)
DIRECTOR OF CENTRAL STAFF
POST OFFICE BOX 489
GRETNA, LOUISIANA 70054 (504) 376-1400
(504) 376-1498 FAX
www.fifthcircuit.org
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
JUNE 19, 2020 TO THE TRIAL JUDGE, CLERK OF COURT, COUNSEL OF RECORD AND ALL PARTIES NOT
REPRESENTED BY COUNSEL, AS LISTED BELOW:
15-KA-339
E-NOTIFIED
40TH DISTRICT COURT (CLERK)
HONORABLE MARY H. BECNEL (DISTRICT JUDGE)
GRANT L. WILLIS (APPELLEE) CHRISTOPHER N. WALTERS (APPELLEE)
CLAIBORNE W. BROWN (APPELLANT)
MAILED
HONORABLE JEFFREY M. LANDRY TERRI R. LACY (APPELLEE) COLIN CLARK (APPELLEE)
(APPELLEE) HEATHER HOOD (APPELLEE) UNITED STATES DEPT OF JUSTICE
ATTORNEY GENERAL ASSISTANT ATTORNEY GENERAL RUSSELL B LONG FEDERAL COURTHOUSE
LOUISIANA DEPARTMENT OF JUSTICE LOUISIANA DEPARTMENT OF JUSTICE 777 FLORIDA STREET
1885 NORTH 3RD STREET POST OFFICE BOX 94005 SUITE 208
6TH FLOOR, LIVINGSTON BUILDING BATON ROUGE, LA 70804 BATON ROUGE, LA 70801
BATON ROUGE, LA 70802
PAMELA S. MORAN (APPELLEE)
ERROL VICTOR, SR. #613100 (APPELLANT) ATTORNEY AT LAW
LOUISIANA STATE PENITENTIARY POST OFFICE BOX 24484
ANGOLA, LA 70712 NEW ORLEANS, LA 70184-4484