State v. WilliamsState v. Williams
Lead Opinion
Defendant Ted Williams was convicted after a bench trial of three counts of armed robbery, violations of R.S. 14:64. The state filed an habitual offender bill in connection with one of the armed robbery counts, alleging two prior felony convictions. Upon defendant’s admission of the allegations of prior convictions contained in the multiple bill, the trial court imposed a sentence of forty-nine years on the armed robbery count set forth in the multiple bill and five yeаr sentences on each of the two remaining armed robbery counts, all sentences to run concurrently. One assignment, complaining of error in the trial сourt’s denial of a motion for new trial, is urged on appeal. However, the issues presented in brief and in argument to this Court in support of the claimed error are not properly before us.
After the judge conducted Williams’ trial, he ordered the state and defense to submit memoranda. Two days later the court announced that it found defendant guilty as charged on all three counts of armed robbery. Thereupon, the defense counsel stated: “Well, we would resрectfully file an appeal and ask for a new trial and verbally supplement it [sic] with a motion and waive all delays and ask for immediate imposition оf sentence.” The trial judge responded: “I deny your motion for a new trial. I will permit you [to] supplement it with a written motion.” Thereafter, at the same proсeeding, the court pronounced sentence.
Five months after Williams was sentenced, appellate counsel, who was not the attorney who hаd tried the case and moved for a new trial just before sentencing, filed
Article 852 of the Code of Criminal Procedure requires that a motion for new trial be in writing and state the grounds upon which it is based. Article 853 requires that such a motion, based upon any grounds other than a claim оf newly discovered evidence, be filed and disposed of prior to imposition of sentence. When defense counsel orally moved for a new trial, he failed to comply with both of the mentioned requisites of Article 852 but apparently sought the court’s leave to supplement the oral motion with a written one and thus comply with at least that requirement of the Code (that it be in writing).
Leave was granted to supplement the record with a written motion, but our consideratiоn of the record leads us to conclude that the trial judge merely intended to allow the defense to file in the record a written motion whose contents corresponded with the oral motion. We are convinced that there was no intent on the part of the trial judge to permit an expansion or supplementation of the new trial motion to encompass grounds not articulated orally in court prior to the imposition of sentence. We are satisfied that in granting permission to defense to file a written motion the trial judge did not intend to circumvent the requirement that a motion for new trial and ruling thereon precede imposition of sentence. The circumstances we review lead us to conclude that the judge merely sought to expedite consideration of the new trial motion which had in fact been made
In orally seeking the new trial the defense did not articulate the argument that the evidence of the element of commission of theft by force or intimidation while armed with a dangerous weapon, an essential element, was insufficient because, bеing wholly circumstantial, it was not such as would exclude every reasonable hypothesis of innocence. Neither had this argument been advanced in the memorandum submitted to the trial judge prior to the adjudication of guilt. The trial judge stated for the record his reasons for finding Williams guilty of armed robbery. It was upon these stated reasons that appellate counsel, five months post-sentence, based his argument in the written new trial motion that the improper standard was аpplied to decide if there was adequate proof of an essential element of the crime. However, there was no objection cоmplaining of application of an improper standard at the time the new trial motion was made in court and ruled upon. That argument only came fivе months later when, ostensibly reducing to writing the motion made prior to sentenc
Neithеr the record on appeal nor the conduct of appellate counsel tends to support the contrary view that waiver of the time requirement was contemplated or that leave was granted to formulate and present new grounds not asserted prior to sentencing. While Article 852 requirеs that a new trial motion be tried contradictorily with the district attorney, the defense did not seek a hearing or even a ruling on the new trial motion filed on newly stаted grounds five months after sentencing.
It is clear that the scheme of the code provisions governing new trial motions contemplates that the motion bе filed after adjudication of guilt and prior to sentencing. That this motion filed five months late was a newly conceived motion is most evident from the fact of its late filing. The argument that this was a speсifically permitted supplementation of the timely though non-written motion for new trial is unconvincing when considered in light of the intent of the statutory scheme govеrning motions for new trial and the record.
Because the complaints asserted in the motion for new trial filed by appellate counsel were not timely urged, the merits of the legal issues are not properly before us for review. See State v. Ashley,
Decree
For the reasons assigned, the convictions and sentences of the defendant, Williams, are affirmed.
AFFIRMED.
Notes
. Whether there existed a sufficient evidentiary basis for finding the defendant was armed with a dangerous weapon was hotly disputed at trial. The evidence bearing upon the issue consisted of the testimony of the three armed robbery victims who related that defendant’s hand was covered by a bulging white handkerchief and who recounted that their assailant claimed to have a gun and threatened to shoot. No one actually saw a gun.
. Had either the defense or the trial judge intended that there be consideration of the written motion to be filed later there would likely have been a postponеment of the imposition of sentence, for Article 853 provides for postponement to allow time for preparation and filing of a new trial motiоn.
Dissenting Opinion
dissents, being of the opinion that the issue of whether the trial court properly ruled on the sufficiency of the evidence was adequately raised and should be considered and determined by the court.