State v. Spell

388 So. 2d 754 (1980)

STATE of Louisiana v. Thomas Rhuel SPELL.

No. 67058.

Supreme Court of Louisiana.

September 3, 1980.

William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., J. Nathan Stansbury, Dist. Atty., Jck Derrick Muller, Asst. Dist. Atty., for plaintiff-appellee.

Nolan Edwards, Larry Dupuis, Edwards, Stefanski & Barousse, Crowley, for defendant-appellant.

CALOGERO, Justice.

Thomas Rhuel Spell was charged by grand jury indictment with the crime of second degree murder, in violation of R.S. 14:30.1. After a second trial by jury, defendant was found guilty as charged and sentenced to life imprisonment without eligibility for parole for forty years.[*] On *755 defendant's motion the trial judge ordered an appeal. Defendant timely filed in the trial court, pursuant to C.Cr.P. art. 851(3), a motion for new trial based on allegations of new and material evidence that, notwithstanding the exercise of reasonable diligence by defendant, was not discovered before or during the trial, which evidence, if available, allegedly would probably have changed the verdict of guilty.

Under C.Cr.P. art. 916, the jurisdiction of the trial court is divested and that of the appellate court attaches upon the entering of the order of appeal and thereafter the trial court has no jurisdiction over the matter except for certain listed actions not applicable here. Thus pursuant to C.Cr.P. art. 853, defendant has filed with this Court a motion to remand his case to the trial court for a hearing on his motion for a new trial. The motion for the remand has not been opposed by the state.

Therefore, in accordance with the above provisions, we remand the case to the trial court for a hearing on defendant's motion for a new trial. State v. Shannon, 360 So. 2d 193 (La.1978); State v. Perry, 351 So. 2d 1201 (La.1977); and State v. Bradford, 275 So. 2d 407 (La.1973).

It is ordered that the case be remanded to the trial court for a hearing on defendant's motion for a new trial.

REMANDED.

[*] Defendant was originally convicted following a bench trial, but upon defendant's motion, the trial court granted defendant a new trial.