96-0175 La.App. 4 Cir. 5/22/96, State v. Nazar

• Decision Date: 22 May 1996
• Citation: 675 So.2d 780
• Parties: 96-0175 La.App. 4 Cir
• Court: Court of Appeal of Louisiana — District of US

Page 780

675 So.2d 780

96-0175 La.App. 4 Cir. 5/22/96

STATE of Louisiana v. William P. NAZAR.

No. 96-K-0175.

Court of Appeal of Louisiana Fourth Circuit.

May 22, 1996.

Harry F. Connick, District Attorney and Giustina Lefante-Persich, Assistant District Attorney for Orleans Parish, New Orleans, for Relator.

Wiley J. Beevers, P.L.C., Wiley J. Beevers and Lawrence B. Hoffing, Gretna, for Respondent.

Before BARRY, KLEES and BYRNES, JJ.

[96-0175 La.App. 4 Cir. 1] BARRY, Judge.

The defendant was originally charged with one count of aggravated battery, but the charge was amended to simple battery. The trial court found the defendant guilty of attempted simple battery, a non-verdict. The defense filed a motion for post-verdict judgment of acquittal and the State "made an oral motion to clarify the verdict." The court vacated its previous verdict and found the defendant guilty of simple battery. The court sentenced the defendant to three months in parish prison, suspended, and placed him on three months inactive probation. He was ordered to pay court costs and $250 to the Judicial Expense Fund. The defendant appealed to the Criminal District Court Appellate Division, which reversed the conviction and acquitted him of the charge. We grant the State's application in order to review that ruling.

The State argues that: 1) the trial court had authority under La.C.Cr.P. art. 813 to replace its original invalid verdict with a valid verdict (even of a greater crime); and 2) the trial court's clarification of a non-verdict does not constitute double jeopardy. The State contends that State v. Mayeux, 498 So.2d[96-0175 La.App. 4 Cir. 2] 701 (La.1986), and the reversal of Mayeux's conviction in Mayeux v. Belt, 737 F.Supp. 957 (W.D.La. 1990), relied upon by the defendant, can be distinguished from this case. It also claims that the defendant was not prejudiced because the judicial error was discovered before sentencing.

At the time of trial the defendant was charged with simple battery. The trial court found him guilty of attempted simple battery, but there is no such crime in Louisiana. An attempted simple battery is a simple assault. La.C.Cr.P. art. 814(A)(14) lists the only responsive verdicts to simple battery: guilty or not guilty. The verdict rendered by the trial court is invalid because it is not a responsive verdict and is not a crime in Louisiana.

According to the State, the trial court may vacate its prior verdict and find the defendant guilty of simple battery. La.C.Cr.P. art. 813 provides:

If the court finds that the verdict is incorrect in form or is not responsive to the indictment, it shall refuse to receive it, and shall remand the jury with the necessary oral instructions. In such a case the court shall read the verdict, and record the reasons for refusal.

Under La.C.Cr.P. art. 820 all provisions regulating responsive verdicts and the effect of verdicts shall apply to cases tried without a jury. Contrary to the State's position, La.C.Cr.P. art. 813 does not provide for a motion to clarify the verdict. The State cites no article of the Code of Criminal Procedure or statute which gives the trial court authority to change its prior verdict. The trial court had no authority to vacate a prior verdict of guilty on attempted simple battery (even though not a recognized crime) and to find the defendant guilty of the greater offense of simple battery. The trial court erred by "clarifying" the verdict to guilt of simple battery. The State's first argument has no merit.

The State's argument that no "prejudice had attached to the defendant" when he was convicted of the completed crime rather than the attempt also [96-0175 La.App. 4 Cir. 3] lacks merit. The State correctly notes that the judicial error was found prior to sentencing and not on appeal as in State v. Mayeux, 498 So.2d 701 (La.1986), and Mayeux v. Belt, 737 F.Supp. 957 (W.D.La.1990). However, that distinction does not make the trial court's decision to vacate its original verdict correct. Mayeux was charged with aggravated battery and the jury was erroneously given attempted aggravated battery as a responsive verdict. Pursuant to a defense request the trial court instructed the jury that it could return a verdict of guilty of attempted aggravated battery in response to the crime charged and the State did not object. The jury found the defendant guilty of attempted aggravated battery and the State did not object even though there is no such crime in Louisiana. The Third Circuit reversed the conviction and ordered the defendant released. State v. Mayeux, 485 So.2d 256 (La.App. 3rd Cir.1986). The Supreme Court reversed and held that entry of the invalid verdict was judicial error which could not operate as an acquittal; the defendant could be retried. 498 So.2d 701 (La.1986). The invalid verdict amounted to a conviction of a non-crime. It could not operate as a conviction or an acquittal. The Supreme Court rejected the argument that retrial would violate the defendant's right against double jeopardy as provided by the Fifth Amendment to the U.S. Constitution and La. Const. art. I, 15. Id. See also La.C.Cr.P. art. 596 and 598.

On retrial the defendant was convicted as charged and his conviction and sentence were affirmed on appeal. State v. Mayeux, 526 So.2d 1243 (La.App. 3rd Cir.1988), writs denied, 531 So.2d 262 (La.1988). The defendant sought habeas corpus relief in federal district court which reversed the conviction based on double jeopardy, Mayeux v. Belt, 737 F.Supp. at 960-61. The U.S. [96-0175 La.App. 4 Cir. 4] District Court concluded that the jury in the first trial was given a full opportunity to return a verdict on the greater charge, but instead found the defendant guilty of attempt. The court had instructed the jury that a verdict of attempt could be returned if the jurors were not convinced that Mayeux was guilty of aggravated battery. The jury acquitted Mayeux of aggravated battery and the second trial...