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State v. Pierce10/31/2001
AFFIRMED IN PART; REVERSED AND SENTENCE VACATED IN PART.
DOUCET, Chief Judge
The Defendant, James Pierce, appeals his conviction for driving while intoxicated, third offense, two counts of manslaughter, and one count of first degree vehicular negligent injuring.
PROCEDURAL HISTORY
James C. Pierce was charged by bill of information with driving while intoxicated, third offense, two counts of manslaughter, and one count of first degree vehicular negligent injuring. A motion to recuse the trial judge, Judge Preston Aucoin, was filed on October 16, 1998, and after a hearing conducted by a different division of the court, the motion was denied. The Defendant filed a writ application in this court. We denied relief, finding no error in the trial court's ruling.
After trial, the jury returned a verdict of guilty on all counts. At the sentencing hearing, in December 1998, the Defendant re-urged his motion to recuse. The motion was denied by Judge Aucoin. The trial judge sentenced the Defendant to serve consecutive sentences of five years at hard labor for his conviction of third offense DWI, forty years at hard labor for each of the manslaughter convictions and five years at hard labor for first degree vehicular negligent injuring, for a total of ninety years. The trial court denied the Defendant's oral request for reconsideration of the sentence.
The Defendant appealed. This court vacated his sentences in an unpublished opinion and remanded the case to the trial court for disposition of an outstanding pro se motion for post-verdict judgment of acquittal. After the case was remanded, the Defendant filed another motion to recuse Judge Aucoin. On April 6, 2000, Judge Aucoin ruled that he lacked jurisdiction to sign an order setting the motion for hearing. The Defendant filed an emergency writ with this court. We ruled that the trial court erred in finding it lacked jurisdiction to assign the motion for hearing. This court remanded the case to the trial court for immediate assignment. This court denied an application for rehearing filed by the State. Subsequently, the supreme court denied the State's writ application. See State v. Pierce, 00-1654 (La. 6/14/00); 763 So.2d 610. After a hearing on the motion to recuse on June 29, 2000, the motion was denied. A hearing on the Defendant's post-verdict judgment of acquittal was held on October 5, 2000. The trial judge denied the motion. On October 9, 2000, the Defendant was sentenced to serve five years at hard labor for third offense DWI, forty years at hard labor for each of the manslaughter convictions, and five years at hard labor for first degree vehicular negligent injuring. The judge ordered that the sentence for DWI run concurrently with the sentences for the remaining counts, which are to run consecutively, for a total of eighty-five years. Defense counsel orally requested reconsideration of the Defendant's sentence. Counsel stated that he would follow-up with a written motion. While the oral motion to reconsider sentence was pending, the Defendant filed a pro se written motion to reconsider, which was denied. The trial court reserved defense counsel's right to file a similar motion within the delays of La.Code Crim.P. art. 881.1(A). On November 15, 2000, the oral motion to reconsider sentence was addressed in open court. The trial court noted that the oral motion was never followed up by a written motion. It denied the motion, noting that no specific grounds had been raised by defense counsel. The Defendant is before this court appealing his convictions and sentences.
FACTS
Late on the afternoon of May 3, 1997, the Defendant was driving under the influence of alcoho
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