Please E-mail suggested additions, comments and/or corrections to Kent@MoreLaw.Com.
Help support the publication of case reports on MoreLaw
State of Louisiana v. Fred Howard, Jr.
Case Number: 53,104-KA
Judge: Felicia Toney Williams
Court: COURT OF APPEAL SECOND CIRCUIT STATE OF LOUISIANA
Plaintiff's Attorney: JAMES E. STEWART, SR.
TOMMY J. JOHNSON
KODIE K. SMITH
Assistant District Attorneys
Need help finding a lawyer for representation concerning appealing a resentencing in Louisiana?
Call 918-582-6422. It's Free.
Following a jury trial, the defendant, Fred Howard, Jr., was convicted
of unauthorized use of a motor vehicle, aggravated flight from an officer,
and aggravated criminal damage to property. Thereafter, Howard was
adjudicated a fourth-felony habitual offender and, as to the aggravated
criminal damage to property conviction, he was sentenced to life
imprisonment without benefit of probation, parole or suspension of sentence.
On the aggravated flight from an officer conviction, the defendant was
sentenced to two years at hard labor. On the conviction of unauthorized use
of a motor vehicle, the defendant was sentenced to five years at hard labor.
The sentences were ordered to run concurrent with each other. Howard’s
convictions and sentences were affirmed on appeal. State v. Howard, 37,603
(La. App. 2 Cir. 10/31/03), 859 So. 2d 936.
On May 2, 2018, Howard unsuccessfully filed a motion to correct an
illegal sentence, arguing that his life sentence was illegal and that pursuant
to State ex rel. Esteen v. State, supra, and La. R.S. 15:308, he was entitled to
be resentenced under the more lenient penalty provisions of La. R.S.
15:529.1 as amended in 2001.
Howard sought supervisory review, and on September 24, 2018, this
Court granted Howard’s writ in part and remanded the matter with
instructions. No. 52,481-KH. This Court found that Howard qualified for
application of the 2001 ameliorative provisions of La. R.S. 15:529.1, and
because Howard only had two prior crimes of violence, he would have
properly been adjudicated under La. R.S. 15:529.1(A)(1)(c)(i), which
provided a sentencing range of “not less than the longest prescribed for a
first conviction but in no event less than twenty years and not more than his
natural life.” Because Howard’s life sentence was authorized by both La.
R.S. 15:529.1(A)(1)(c)(i) and La. R.S. 15:529.1(A)(1)(c)(ii), this Court
found that the term of Howard’s sentence was not illegal and denied the writ
in part “as it relates to Howard’s life term.”
However, this Court found that the parole prohibition contained in
Howard’s sentence was illegal because La. R.S. 14:55 (2000), the statute for
aggravated criminal damage to property, did not contain any parole
restriction. Therefore, this Court granted the writ in part and remanded “for
resentencing pursuant to the more lenient provisions of La. R.S.
15:529.1(A)(1)(c)(i), as enacted by the legislature in 2001 La. Acts 403.”
Howard did not seek review by the Louisiana Supreme Court.
On October 31, 2018, Howard was resentenced to life imprisonment
with the benefit of parole, and with no eligibility for probation or suspension
of sentence. On November 5, 2018, Howard filed a motion to reconsider
sentence, asserting that his sentence was constitutionally excessive. The
trial court denied the motion. This appeal followed.
Assignment of Error: The trial court erred by imposing an unconstitutionally
harsh and excessive sentence.
On review, the defendant argues that he was entitled to resentencing
to a sentence within the applicable statutory range under State ex rel. Esteen
v. State, supra. He asserts that his life sentence is excessive in light of his
convictions, and that a sentence of more than 20 years but less than life
should have been imposed.
In response, the state points out that Howard’s life sentence was not
remanded to the trial court, and therefore, the trial court did not have
jurisdiction to modify the length of Howard’s sentence on remand.
According to the state, Howard’s life sentence is final and is not reviewable
by this Court.
La. C. Cr. P. art. 916 provides that the jurisdiction of the trial court is
divested and that of the appellate court attaches on the entering of the order
of appeal, and thereafter the trial court has jurisdiction to modify a sentence
only in the specific circumstances referred to in the article, including the
correction of an illegal sentence. As such, following the affirmance of an
appealed sentence, the sentencing judge no longer retains jurisdiction to
modify a legal sentence.1 State v. Alexander, 376 So. 2d 146 (La. 1979);
State v. Garrett, 497 So. 2d 790 (La. App. 2 Cir. 1986).
1 Article 916 provides:
The jurisdiction of the trial court is divested and that of the appellate court attaches upon the entering of the order of appeal. Thereafter, the trial court has no jurisdiction to take any action except as otherwise provided by law and to:
The Louisiana Constitution does not provide for a second direct
appeal. Once an appellate court renders judgment, and that judgment
becomes final, the criminal defendant no longer has a right to appeal the
decision, but is limited to seeking supervisory review. La. C. Cr. P. art.
912.1(C)(1); La. C. Cr. P. art. 922; State v. Jackson, 39,515 (La. App. 2 Cir.
3/2/05), 895 So. 2d 695.
In this case, Howard’s life sentence was reviewed and affirmed on his
first direct appeal. Pursuant to a motion to correct illegal sentence filed by
the defendant, this Court specifically found that the term of Howard’s
sentence was not illegal and denied the writ in part, “as it relates to
Howard’s life term.” Therefore, the term of Howard’s sentence was not
before the trial court on remand, and the trial court lacked the jurisdiction to
modify the term of the defendant’s sentence. Howard’s life sentence is final
and he no longer has any right to a review of that sentence on appeal.2 This
assignment of error is without merit.
Outcome: For the foregoing reasons, the sentence of the defendant, Fred
Howard, Jr., is affirmed.