State v. SmithState v. Smith
The dеfendant, Edward D. Smith, was charged by bill of information with a violation of
At trial Mr. Jules A. Fontana, Jr., the victim, testified that he had parked and locked his 1986 Oldsmobile in a lot behind his office at 1022 Loyola Ave. about 3 P.M. on January 5, 1990, yet when he went out to get it at 5 P.M., it was gone. Fontana reportеd the loss to the police immediately. When several days later, after receiving word that his car had been found, he retrieved it, he discovered that the right rear window had been smashеd, the steering column broken and the front fender dented.
NOPD Officer Henry F. Laurent testified that on Januаry 5, 1990, about 8:30 P.M., when he was driving on South Galvez St., he stopped at a traffic light and glanced at the car pulled along side of his. The right rear window had been shattered. The two men in the car, who became very nervous when the police men looked their way, suddenly opened their doors and bolted toward the project, leaving the car stopped but running in the middle of the strеet. Officer Laurent pursued the driver, Edward Smith, and apprehended him. Laurent then saw that the car with the broken window also had a broken steering column and was being driven without a key. A computer search revealed that the auto was stolen.
Counsel has filed a brief requesting only a rеview for errors patent. Counsel complied with the procedures outlined by Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), as interpreted by this Court in State v. Troy Benjamin, 573 So.2d 528 (La.App. 4th Cir.1990). Counsel‘s detаiled review of the procedural history of the case and the facts of the casе indicate a thorough review of the record. Counsel has moved to withdraw because he believes, after a conscientious review of the record, that there are no nоn-frivolous issues to be raised on appeal. Counsel has reviewed all available trаnscripts and has found no trial court rulings which arguably support the appeal. A copy оf the brief was forwarded to the appellant and this Court informed the defendant that he had thе right to file a brief on his own behalf. He has not done so.
As per State v. Troy Benjamin, this Court has performed an independent, thorough review of all the pleadings filed in the district court, all minute entries of the district court рroceedings, the bill of information and all transcripts contained in the appeal rеcord. The defendant was properly charged by bill of information with a violation of
The dеfendant was present and represented by counsel at arraignment, jury selection and sеntencing. However, the defendant was not present during trial and possibly not when judgment was rendered. In the trial transcript, after opening statements the following notation appears: “At this time the defendant elected to be outside the court.” (Trial transcript, p. 2). And when Officer Laurent testified, the prosecution asked that the defendant be brought in for identification; the cоurt then asked the sheriff to bring him in. Moreover, there is no evidence that the defendant was present when judgment was rendered.
A defendant charged with a felony must be present at every important stage of trial.
A review of the trial transcript reveals that the State proved every essential element of possession of stolen рroperty worth more than $500 beyond a reasonable doubt. The sentence of three and one-third years at hard labor is illegally lenient, however. But because an appellate court may not amend or set aside an illegally lenient sentence when the defendant alone has appealed, we will not increase the sentence. State v. Gilmore, 529 So.2d 859 (La.App. 4th Cir.1988), writ denied 533 So.2d 373 (La.1988). Our independеnt review reveals no non-frivolous issues and a review of all transcripts contained in the appeal record reveals no trial court ruling which arguably supports the appeal. Accordingly, the defendant‘s conviction and sentence are affirmed. Appellant counsel‘s motion to withdraw is granted.
AFFIRMED.