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514 So. 2d 588

State v. Evans

Louisiana Court of Appeal

Decided October 7, 1987

Louisiana Court of Appeal · decided 1987-10-07

Cited by 3 later decisions — most recently March 1997

3 state decisions

Key passage — most relied on by later courts

“(1) Facts to which the absent witness is expected to testify, showing the materiality of the testimony and the necessity for the presence of the witness at the trial; (2) Facts and circumstances showing a probability that the witness will be available at the time to which the trial is deferred; and (3) Facts showing due diligence used in an effort to procure attendance of the witness. La.C.Cr.P. article 709.”

quoted by 1 later decision, including 691 So. 2d 1281 - State v. Borne

Relies on 440 So. 2d 129 - State v. Benoit · State v. Navarre · State v. Blue

Good law ✅— No negative treatment on recordhow we know

Decided 1987-10-07

View the full empirical analysis of this case →

BARRY, Judge.

¶1The defendant was convicted of armed robbery. La.R.S. 14:64. According to the docketmaster and minute entry he was sentenced to five years in Orleans Parish Prison without benefit of probation, parole, or suspension of sentence. He appeals assigning as error the trial court denial of his motion for a continuance forcing him to trial without adequate time to prepare or secure witnesses.

¶2On July 25, 1986 the defendant noted an oral objection to the setting of trial on August 7, 1986, but did not file a written motion for continuance until August 5, 1986. The motion was not filed seven days prior to trial as required by La.C.Cr.P. Art. 707. His motion was based on the absence of witnesses, but it did not state the three requirements of La.C.Cr.P. Art. 709: (1) the facts to which the absent witness is expected to testify, its materiality and the necessity for the witness’ presence at trial; (2) facts showing a probability the witness will be available at the later time to which the trial is continued; and (3) facts showing due diligence in attempting to procure the witness’ attendance. See State v. Donaldson, 439 So.2d 1138 (La. App. 4th Cir.1983).

¶3*589The defendant’s tardy motion attached a list of witnesses, two of which were listed by first name only. The facts to which they would testify were not stated nor was the materiality of their testimony. The motion did not declare that the witnesses would be available at a definite later time nor did it set forth defense counsel’s attempts to locate them.

¶4Even if timely filed, the granting or denying of a motion to continue lies within the trial court’s discretion. La.C.Cr.P. Art. 712. A denial is not grounds for reversal absent an abuse of discretion and a showing of specific prejudice. State v. Benoit, 440 So.2d 129 (La.1983).

¶5In brief (but not in the motion) the defendant argues the witnesses would have testified that the defendant had been wearing a hat and sunglasses the day of the robbery contrary to the victim’s description. However, prejudice is difficult to find because a male bikerider saw the struggle between the female victim (in which her hand was cut) and the robber and he chased the perpetrator. The culprit who was eventually stopped by a security guard was the defendant.

¶6Any possibility of misidentification due to a faulty description by the victim was discounted. The testimony of the other potential listed witnesses, many of the the defendant’s teachers (character witnesses) would have been repetitious. Several character witnesses did testify and two additional ones were stipulated. No prejudice has been shown to warrant reversal. The assignment of error lacks merit.

¶7We note the docketmaster and minute entry state the defendant was sentenced to five years in Orleans Parish Prison although La.R.S. 14:64 mandates the sentence be served at hard labor. Individuals sentenced to confinement at hard labor shall be committed to the Department of Corrections. La.R.S. 15:824C; La.R.S. 15:566B; State v. Blue, 315 So.2d 281 (La.1975); State v. Hudson, 442 So.2d 735 (La. App. 1st Cir.1983). The commitment document does state imprisonment in the custody of the Department of Corrections.

¶8A sentence is not rendered invalid by the trial court’s failure to specify D.O.C. as the place of commitment. State v. Caillier, 450 So.2d 43 (La.App. 3rd Cir.1984), writ denied 456 So.2d 168 (La.1984).

¶9By statute the sentence for armed robbery must be “at hard labor” and in the custody of the Department of Corrections. An illegal sentence may be corrected by this court on appeal. La.C.Cr.P. Art. 882; State v. Wisenor, 452 So.2d 281 (La.App. 2d Cir.1984). The minute entry must be corrected to reflect that the five year sentence be served at hard labor in the custody of the Department of Corrections. See State v. Navarre, 289 So.2d 101 (La.1974).

¶10The defendant’s conviction is affirmed. The sentence is affirmed as amended.

¶11CONVICTION AFFIRMED.

¶12SENTENCED AFFIRMED AS AMENDED.

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