State v. Washington

278 So. 2d 484 (1973)

STATE of Louisiana
v.
Melvin B. WASHINGTON, Jr.

No. 53206.

Supreme Court of Louisiana.

May 24, 1973.

Servando C. Garcia III, Robert M. Green, New Orleans, for defendant-appellant.

William J. Guste, Jr., Atty. Gen., LeRoy A. Hartley, Sp. Asst. Atty. Gen., Woodrow W. Erwin, Dist. Atty., Julian J. Rodrique, Asst. Dist. Atty., for plaintiff-appellee.

PER CURIAM.

Defendant, Melvin B. Washington, Jr., was tried and convicted of murder in violation of LSA-R.S. 14:30. He was sentenced to death.

The record in this case indicates that no motion for an appeal as required by LSA-C.Cr.P. Art. 914, has been filed of record. Defense counsel, in their brief before this Court, concede that no formal appeal has been timely perfected. Therefore, there is nothing before this Court for review. State ex rel. McIsaac v. Sigler, 236 La. 773, 109 So. 2d 89 (1959).

We take cognizance, however, of the fact that the defendant was sentenced to death. This sentence is no longer legal as a result of our holding in State v. Franklin, 263 La. 344, 268 So. 2d 249 (1972), applying the rule of the United States Supreme Court in Furman v. Georgia, 408 U.S. 238, 92 S. Ct. 2726, 33 L. Ed. 2d 346 (1972) to Louisiana cases.

The trial court retains jurisdiction to correct defendant's sentence to conform with the law. LSA-C.Cr.P. Art. 916. In accordance with our holding in State v. Franklin, supra, defendant should be resentenced to life imprisonment.

As no appeal has been perfected, this case is ordered stricken from our docket and remanded to the trial court for resentencing.