Date: 02-06-2016

Case Style: STATE OF LOUISIANA V. LARRY JOSEPH MCKITHERN AKA - LARRY MCKITHERN

Case Number: 15-930

Judge: Elizabeth A. Pickett, Shannon J. Gremillion, Phyllis M. Keaty

Court: STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT

Plaintiff's Attorney: CARLA SIGLER, KAREN MCLELLAN

Defendant's Attorney: ED BAUMAN

Description: On December 2, 2010, Defendant-Appellant was convicted of armed
robbery and aggravated arson in docket number 25391-09. On March 9, 2011, in
docket number 3678-11, Defendant-Appellant was adjudicated a second habitual
offender and was sentenced to one hundred and thirty years on the charge of armed
robbery and thirty years on the charge of aggravated arson. The sentences were
ordered to run consecutively. On appeal, Defendant-Appellant’s convictions were
affirmed; the habitual offender adjudication and sentences were vacated and
remanded to the trial court for further proceedings and resentencing. State v.
McKithern, 11-1111 (La.App. 3 Cir. 5/2/12), 93 So.3d 697, writ denied, 12-1653
(La. 1/1/13), 108 So.3d 782; State v. McKithern, 11-1402 (La.App. 3 Cir. 5/2/12),
93 So.3d 684, writ denied, 12-1653 (La. 3/1/13), 108 So.3d 782.
On May 19, 2014, at the hearing on Defendant-Appellant’s habitual offender
adjudication in docket number 3678-11, Defendant-Appellant was resentenced to
one hundred and ten years on the armed robbery charge and twenty years on the
aggravated arson charge. The sentences were ordered to run consecutively without
the benefit of probation, parole, or suspension of sentence.
In response to two motions and orders for appeal in docket number 3678-11
and 25391-09, the trial court, although acknowledging the motions sought an
appeal, ordered Defendant-Appellant to submit a writ application to this court.
Defendant-Appellant filed a writ application in this court, and this court issued the
following ruling:
WRIT GRANTED AND MADE PEREMPTORY IN PART; WRIT DENIED IN PART: Relator is entitled to an appeal of his May 19, 2014, habitual offender adjudication and sentencing, and his request for an appeal was timely sought. La.Code Crim.P. arts. 912 and 914. Accordingly, we vacate both the trial court’s June 10, 2014, ruling ordering Relator to submit a writ application and its September
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25, 2014, order denying Relator’s second motion for appeal. The trial court is ordered to grant Relator’s request for appeal of the May 19, 2014, habitual offender adjudication and sentencing. If Relator is found indigent, counsel shall be appointed to represent him on appeal. Relator’s request for the inclusion in the appellate record of certain motions, transcripts, and evidence is considered as a pro se motion for designation of the record which is remanded to the trial court for consideration in conjunction with the granting of the aforementioned appeal. Relator’s request for mandamus relief on his motion to reconsider sentence, motion to stay appeal, and pro se motions for appeal are denied as moot. State v. McKithern, 14-842 (La.App. 3 Cir. 5/19/15) (unpublished opinion).
On September 30, 2015, this court lodged the record of appeal in docket
number 25391-09, which is the instant case. On the same date, this court also
lodged the record of appeal in docket number 3678-11, which was assigned docket
number 15-931. On October 8, 2015, this court issued a rule to show cause why
the appeal in the instant case should not be dismissed, as the judgment being
appealed was rendered on May 19, 2014, which relates to the habitual offender
docket number 3678-11 and as this court affirmed Defendant-Appellant’s
convictions in docket number 25391-09. See McKithern, 11-1402 and McKithern,
11-1111.
On December 4, 2015, Defendant-Appellant filed a “Pro Se Supplemental
Brief In Responses To The Order To Show Cause Issued 10-29-15, And Now
Respectfully Submitted” with this court. Defendant-Appellant asserts in his brief:
On 5-19-2014, the district court resentenced petitioner under both counts – only this time the La.R.S[.] 14[:]64[,] arm[ed] robbery was 110 years under docket no. 3678-11 – and the 20 years RS[.] 14[:]51 was under criminal court docket 25391-09.
The court has - 2 sentence[s] - with one docket no[.] in relation to 15[:]529.1[,] docket no[.] 3678-11 - and 14[:]51 being a sentence under 25391-09. The appeal is proper - This court has appellate jurisdiction pursuant to article 5 section 10 of the Louisiana Constitution - 1974. Also art 1 subs 19 [sic]-

Outcome: As stated above, this court affirmed Defendant-Appellant’s convictions on
appeal in docket number 25391-09. See McKithern, 93 So.3d 684. The appeal of
Defendant-Appellant’s habitual offender adjudication in docket number 3678-11 is
pending before this court in docket number 15-931. Accordingly, we hereby
dismiss Defendant-Appellant’s appeal in the instant case.
APPEAL DISMISED.

Plaintiff's Experts:

Defendant's Experts:

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