State v. Proctor

66 So.3d 59 (2011)

STATE of Louisiana
v.
Kenneth W. PROCTOR.

No. 09-KA-956.

Court of Appeal of Louisiana, Fifth Circuit.

May 24, 2011.

Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Assistant District Attorney, Gretna, LA, for Plaintiff/Appellee.

Lieu T. Vo Clark, Attorney at Law, Louisiana Appellate Project, Mandeville, LA, for Defendant/Appellant.

Panel composed of Judges MARION F. EDWARDS, JUDE G. GRAVOIS, and MARC E. JOHNSON.

MARION F. EDWARDS, Chief Judge.

Defendant/appellant, Kenneth W. Proctor ("Proctor"), appeals from his conviction and sentence for possession of cocaine, a violation of La. R.S. 40:967(C). For the reasons to follow, we dismiss the appeal.

Following his conviction on July 10, 2009, Proctor was sentenced to two years of imprisonment at hard labor. On the same day, following sentencing, the State filed a multiple offender bill of information alleging that Proctor was a quadruple felony offender. Proctor denied the allegations in the multiple bill. Also on that same day, Proctor filed a motion for appeal and reconsideration of sentence. The appeal order was signed on July 13, 2009, and the Motion for Reconsideration was later signed on July 16, setting the matter for hearing. On the day the motion was to be heard, Proctor did not appear, and the matter was continued. This pattern continued for some time, with multiple continuances usually due to Proctor's failure to appear. On June 18, 2010, the court ordered an attachment for Proctor's arrest. Proctor was finally brought before the court for a multiple bill hearing on November 29, 2010 and, on December 16, 2010, he was adjudicated a fourth felony offender. His original sentence was vacated, and he was sentenced to imprisonment at hard labor for twenty years without benefit of parole, probation, or suspension of sentence, with credit for time served.

On appeal, Proctor contends that the court erred in failing to rule on the Motion for Reconsideration of Sentence and that the case should be remanded to the trial court with instructions to rule on the outstanding motion.

We note that the Motion for Appeal was premature because it was filed after Proctor was convicted and sentenced for the offense and arraigned on the habitual offender charges but before he was tried on the habitual offender bill and re-sentenced. However, that procedural defect was cured by the subsequent re-sentencing.^[1] Nevertheless, the only issue raised on appeal is moot as it is related to Proctor's original sentence, which has been vacated.

For the foregoing reasons, this appeal is dismissed.

DISMISSED

NOTES

[1] See, State v. Page, 96-227 (La.App. 5 Cir. 8/28/96), 680 So.2d 104, writ denied, 96-2543 (La.9/19/97), 701 So.2d 153; State v. Payne, 10-0046 (La.App. 5 Cir. 1/25/11), 59 So.3d 1287.