
    STATE of Louisiana v. Ray A. PEMBERTON.
    No. 85-KP-1007.
    Supreme Court of Louisiana.
    Dec. 2, 1985.
    Dixon, C.J., concurred.
    
      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John M. Mam-oulides, Dist. Atty., George Mustakas, II, Dorothy Pendergast, Asst. Dist. Atty., for plaintiff-applicant.
    Provino Mosca, New Orleans, for defendant-respondent.
   LEMMON, Justice.

We granted certiorari to review the trial court’s granting of post conviction relief by setting aside relator’s conviction, which had previously been vacated and then reinstated. We now reverse the trial court and deny relator’s post conviction application. We conclude that the trial judge acted without jurisdiction when he initially vacated the conviction in this case while the conviction was on appeal to decide the very issue which formed the basis for vacating the plea, so that both the vacating of the conviction and the later reinstatement were invalid and of no effect.

Relator was charged with a number of crimes arising from his sexual activity with his eight-year old natural daughter between January and August of 1978. On June 2, 1981, pursuant to a plea bargain, relator entered guilty pleas to one count of aggravated crime against nature and to a reduced charge of forcible rape. Immediately after he was sentenced, relator applied for an appeal, which was granted on August 18, 1981.

Two months after sentencing and while the appeal was pending, relator’s attorney wrote to the trial judge and asserted that La.R.S. 14:42.1, the statute which then defined the crime of forcible rape, had not been legislatively adopted until September, 1978, after relator’s conduct which led to his guilty plea and conviction. The judge, evidently treating the letter as an application for post conviction relief, set a hearing for March 17, 1982. At the hearing, the judge set aside the conviction of forcible rape. The district attorney then reinstated the original charges which had been dropped pursuant to the plea bargain.

On September 9, 1982, the district attorney filed a motion to reinstate the conviction and sentence. At a hearing on September 14, 1982, the judge concluded that he had lacked the authority to set aside the conviction. In relator’s presence and with the consent of his counsel, the judge reinstated relator’s conviction and sentence for forcible rape.

On March 3, 1983, defense counsel filed a motion to extend the return date for the pending appeal which had been ordered on August 18, 1981. The record on appeal was ultimately lodged in this court in August, 1983, and the conviction was affirmed in December, 1983, 442 So.2d 440. The validity of the trial court’s September 14, 1982 reinstatement of the conviction was not raised on appeal.

On January 18, 1985, relator filed the present application for post conviction relief. The sole basis asserted for relief was the claim that the September 14, 1982 reinstatement of the conviction violated the constitutional prohibition against double jeopardy. The application explained that the issue had not been raised on appeal because counsel was unaware of this court’s ruling in State v. Neames, 377 So.2d 1018 (La.1979), that a vacated conviction is conclusively invalid and reinstatement is absolutely barred by double jeopardy guarantees.

After an answer by the district attorney and a hearing, the trial court set aside the conviction. Citing State v. Terry, 458 So.2d 97 (La.1984), the trial court ruled that a vacated conviction cannot be reinstated in the absence of a timely application for review by the district attorney. The court then ordered a new trial, but refused to discharge relator because there had been no double jeopardy violation. This court thereafter granted the district attorney’s application for certiorari. 472 So.2d 589.

We agree with the trial judge that the present case is not controlled by the Neames decision. The conviction in the present ease was set aside at the defendant’s request, while the conviction in the Neames case was set aside on the court’s own motion. Therefore, the double jeopardy considerations underlying the Neames decision are totally lacking in the ease, and post conviction relief is not dictated by the Neames decision.

The brief four-to-three per curiam decision in Neames stated a “jurisprudential rule”, based on double jeopardy considerations, that a conviction, once vacated, is conclusively invalidated. The trial judge in this case recognized that the “jurisprudential rule” of Neames does not apply when there are no double jeopardy considerations. However, the judge granted post conviction relief on the basis of the Terry decision, which implicitly recognized (contrary to the broad “jurisprudential rule” of Neames) that an order vacating a conviction may be subject to reconsideration or review if done properly and timely.

In Terry, the defendant was convicted in 1977 on the basis of a guilty plea. He did not appeal. In 1983, defendant filed an application for post conviction relief, complaining that his guilty plea was invalid because he had not been aware of the constitutional rights he was waiving. The trial judge, without notice to or an answer from the state, granted post conviction relief, vacated the conviction and ordered re-arraignment. After the district attorney was notified of the judge’s action, the defendant pleaded not guilty at rearraignment. Four days later, the trial judge (for reasons not shown in the record) vacated his earlier order granting post conviction relief and ordered a hearing on the post conviction application. After the hearing, the judge denied the application.

After granting certiorari, this court held that the district attorney had acquiesced in the order granting post conviction relief by failing to seek review of that order. The majority concluded that the order became final when the district attorney went forward, without objection, with the reinstated charges.

As noted, there was no appeal pending when the conviction was set aside in the Terry case. In the present case, however, defendant had appealed immediately after the sentencing. While the appeal was pending, defense counsel raised an issue which was reviewable on the appeal, namely, whether the .guilty plea conviction was based upon a statute which was not in existence at the time of the charged conduct. Since that issue could have been raised in the pending appeal (and in fact was raised and rejected on appeal), the trial court had no jurisdiction to adjudicate the issue. See La.C.Cr.P. Art. 916, which provides in part that “[t]he jurisdiction of the trial court is divested and that of the appellate court attaches upon the entering of the order of appeal”. See also State v. Stephens, 438 So.2d 203 (La.1983). Therefore, both the March 17, 1982 vacating of the conviction and the September 14, 1982 reinstatement of the conviction were null and void for lack of jurisdiction, in as much as the granting of the appeal had divested the trial court of jurisdiction (at least as to the -adjudication of that particular issue Which was reviewable on appeal). Both the vacating and the reinstatement should have been disregarded dn the post conviction proceeding following the affirmation of the conviction on appeal.

Accordingly, the trial court’s granting of post conviction relief -is reversed, and the post conviction application -is denied.

DIXON, C.J., concurs.

CALOGERO ’and LEMMON, JJ., concur and assign reasons.

CALOGERO, Justice,

concurring.

In assigning additional reasons to his decision in State v. Pemberton, Justice Lemmon expresses his opinion that State v. Reed, 315 So.2d 703 (La.1975), was, at least in part, decided erroneously and to that extent should be overruled.

In State v. Reed, a bench trial in which the defendant was charged with possession of marijuana, the judge found the defendant guilty after both the state and defense had rested their cases. The defense counsel immediately objected to the decision on the basis that the state had failed to produce the contraband, a possible evidentiary insufficiency. Despite defense counsel’s protests, the judge, on his own motion, withdrew the guilty finding and reopened the case for further evidence. Both the state and the defense put on additional Witnesses, and the trial court again found 'the defendant guilty. This Court reversed the defendant’s conviction and ordered him discharged on the basis that the second finding of guilt may not stand in view of the double jeopardy provision of the fifth amendment to the United States Constitution and that “[t]he Court’s ex parte withdrawal of its earlier guilty verdict ... effectively and conclusively invalidated such verdict.”

Although agreeing that “the double jeopardy clause prohibited reopening the case for additional evidence after the first verdict was challenged,” Justice Lemmon suggests that “[n]o double jeopardy considerations prevented an affirmation of the first verdict.” However, I reemp'hasize that the first guilty verdict nullified by the trial judge was hardly the kind of guilty conviction that we could reinstate after nullifying the trial judge’s ruling reopening this case for further evidence. As was -noted-in footnote No. 2 of the Reed opinion, when the trial judge withdrew the first verdict, he was not convinced that the state had proved its case against the defendant. Implicit in his determination to re-open the case for additional evidence is his conclusion that there was insufficient evidence to find guilt. Hence, there was no valid guilty verdict to affirm after the double jeopardy considerations eliminated further proceedings.

It matters not that hindsight permits us, or the defense attorney, to say that the trial judge was wrong in that regard. The defendant was essentially acquitted by the trial judge insofar as sufficiency was concerned in the first trial.

In my view, Reed was not wrong and ought not be overruled, as is espoused in the Pemberton concurring opinion.

LEMMON, Justice

assigning additional reasons.

This court’s position on the reinstatement of vacated convictions in unclear. Because a discussion of the issue was unnecessary to the holding in the present case, my views are set forth in this separate opinion.

In State v. Neames, 377 So.2d 1018 (La.1979), the court used language to the effect that a conviction, once vacated, is absolutely invalid and can never be reinstated. Clearly, that language was much too broad. There is no legal, logical or compelling reason why a conviction which has been improperly vacated cannot be reinstated either by the appellate court under proper review procedures or by the trial court under proper reconsideration procedures.

In the Neames case, the defendant, after waiving a jury and assistance of counsel, was convicted of making harassing telephone calls. About six weeks after sentencing, the trial judge subpoenaed defendant into court for an “amendment of sentence”, based on the judge’s discussions with several psychiatrists after reviewing information in the presentence investigation report about the defendant’s possible insanity. At the hearing, the judge set aside the conviction and sentence, found defendant not guilty by reason of insanity, and committed defendant to a mental hospital. When defendant subsequently filed an application for habeas corpus challenging the legality of the commitment, the judge vacated his • earlier order which had set aside the conviction, thereby effectively reinstating the conviction.

On appeal, this court, in a brief per cu-riam opinion on a four-to-three vote, set aside the conviction and ordered defendant discharged from further prosecution. The decision stated:

“Under our jurisprudence, a trial court’s vacation of a conviction, even if beyond its authority, effectively and conclusively invalidates the verdict thus invalidated. This jurisprudential rule was adopted to effectuate double jeopardy protections of our state constitution _” (citations and footnotes omitted) (emphasis added).

Id. at 1019. As authority for the “jurisprudential rule” of the Neames decision, the court cited State v. Reed, 315 So.2d 703 (La.1975). However, the factual situations and the legal issues in the two cases were vastly different.

In Reed, the trial judge found the defendant guilty of possession of marijuana in a bench trial. When defense counsel pointed out a possible evidentiary insufficiency in the state’s failure to produce the contraband, the judge on his own motion set aside the conviction and reopened the case to allow the state to introduce further evidence. On the basis of the original evidence and the additional evidence, the judge again found the defendant guilty.

On appeal, defense counsel conceded that the evidence was sufficient to support the first verdict, but argued that the second verdict after the withdrawal of the first verdict violated defendant’s . guarantee against double jeopardy. This court reversed the conviction in a four-to-three decision, holding that double jeopardy considerations barred affirmation of the conviction based on either the second or the first verdict. The court correctly observed that the second verdict was invalid because the case was reopened on the court’s own motion and not on motion of the defendant. As to the first verdict, the majority asserted that the trial court’s “ex parte withdrawal of its earlier guilty verdict ... effectively and conclusively invalidated such verdict” and that the appellate pourt “may not resurrect that verdict in the interest of saving a conviction of the State”. Id at 707. In my opinion, the Reed decision was in error as to the validity of the first verdict.

The Reed decision properly reversed the second verdict, which was based partially on the additional evidence produced after the state had rested on rebuttal and the trial court had rendered a verdict. The double jeopardy clause prohibited reopening the case for additional evidence after the first verdict was challenged on sufficiency grounds. See State v. Joseph, 434 So.2d 1057 (La.1983). However, reversal of the second conviction only required invalidation of the trial court’s simultaneous action of vacating the first verdict and reopening the case, which would have left the first verdict intact. No double jeopardy considerations prevented an affirmation of the first verdict if the original evidence was sufficient to support the first verdict. It was the trial court's reopening of the case on its own motion “in the interest of saving a conviction for the State” which violated defendant’s double jeopardy protection. Since the vacating of the first verdict was a necessary and contemporaneous concomitant to the reopening of the case, the entire action should have been invalidated, leaving the first verdict to stand or fall on the sufficiency of the evidence in support thereof. No theory of double jeopardy required reversal of the first verdict (con-cededly supported by sufficient evidence) on the basis that a conviction, once vacated, is conclusively invalidated by the vacating of the conviction, and the Reed decision should be overruled to that extent.

The Neames case did not involve the same double jeopardy considerations - as Reed. Nevertheless, this court’s brief per curiam decision applied the so-called “jurisprudential rule” of Reed simply because a conviction had been vacated, without analyzing the basis for such an application.

In Neames, the defendant had been convicted in a bench trial after waiving counsel. When the judge later obtained information which indicated the defendant may have been insane and had possibly lacked the capacity to waive counsel, he vacated the conviction on his own motion.

This court held that the state was barred from either reprosecuting the charge or reinstating the conviction after the judge had vacated the conviction other than on defendant’s motion. However, the brief per curiam decision did not consider that reprosecution is not necessarily barred when there was a “manifest necessity” to declare a mistrial (or vacate a conviction) for defendant’s benefit without the defendant’s consent, unless there was contrivance by the state or prejudice to the defendant. See Gori v. United States, 367 U.S. 364, 81 S.Ct. 1523, 6 L.Ed.2d 901 (1961); Illinois v. Somerville, 410 U.S. 458, 93 S.Ct. 1066, 35 L.Ed.2d 425 (1973); State v. Bodley, 394 So.2d 584 (La.1980) (Lemmon, J., concurring), 435 So.2d 421 (La.1983) (Dennis, J., concurring). See also 3 W. LaFave and J. Israel, Criminal Procedure § 24.2(b) (1984). Arguably, the trial judge found a “manifest necessity” to vacate the conviction in order to protect an uncounseled defendant who had been convicted after a questionable waiver of counsel, thereby putting the defendant back into the more advantageous position he occupied before his waiver of counsel and conviction. The “manifest necessity” theory apparently has been applied only in mistrial situations, but the same principles are arguably applicable when the trial judge sets aside a conviction for the defendant’s obvious benefit. Nevertheless, that issue need not be decided in the present case, since the conviction was set aside at defendant’s request. 
      
      . Relator was charged with aggravated rape, aggravated crime against nature (two counts), incest and cruelty to juveniles.
     
      
      . Relator was sentenced to forty years imprisonment for forcible rape and fifteen years for aggravated crime against nature, to be served consecutively.
     
      
      . This contention was also urged on relator’s appeal. This court ultimately rejected the contention and affirmed the conviction, observing that forcible rape was first defined legislatively as a crime in 1975 in La.R.S. 14:43.1 and that the 1978 act simply renumbered the statute as La.R.S. 14:42.), without changing the essential elements of the offense. State v. Pemberton, 442 So.2d 440 (La.1983).
     
      
      . The order did not purport to affect the conviction of aggravated crime against nature.
     
      
      . The judge cited La.C.Cr.P. Art. 559, which provides in part:
      "The court may permit a plea of guilty to be withdrawn at any time before sentence."
      Of course, a trial judge may set aside a conviction, whether by trial or by plea, upon proper post conviction procedures, after sentencing and even after affirmation on appeal.
     
      
      . The only assignment of error on appeal involved the claim that forcible rape was not a legislatively defined crime at the time of defendant’s conduct. See footnote 3.
     
      
      . The broad "jurisprudential rule” of Neames is discussed in a separate concurring opinion by the author.
     
      
      .La.C.Cr.P. Art. 927 provides that when a post conviction application alleges a claim which, if proved, would entitle the petitioner to relief, the court shall order the district attorney to file an answer. The obvious purpose of the article is to afford the state an opportunity to be heard before relief is granted.
     
      
      . The author of this opinion dissented in Stephens, which involved the vacating of a sentence allegedly procured by the defendant’s fraud. The dissent was based on the theory that the trial court’s jurisdiction is only divested as to matters reviewable on appeal. Since the record on appeal did not contain any evidence of fraud, the issue'was not passed on by the trial court and was not reviewable on the appeal. The dissent noted that it would have been preferable as a housekeeping measure for the trial court to have requested the appellate court to remand the matter for the nullity determination or to have waited for the finality of the appeal before determining the nullity of the sentence based on fraud.
     
      
      . A trial court’s vacating of a conviction is certainly subject to review by a higher court upon proper application, and reversal, if appropriate, would reinstate the conviction. If a higher court can reinstate a vacated convicted on proper application for review, the court which vacated the conviction should be able to reinstate it upon proper application for reconsideration.
     
      
      . Of course, at the time this court considered the Reed case, the Supreme Court of the United States had not yet announced its decisions in Burks v. United States, 437 U.S. 1 (1978), 'that the double jeopardy rule of United States v. Bell, 163 U.S. 662, 16 S.Ct. 1192, 41 L.Ed. 300 (1896), does not apply when the appellate reversal is based on insufficiency of the evidence. The Burks decision would have prevented the trial judge in the Reed case from reopening the case for additional evidence once the first verdict had been rendered.
     
      
      . The Reed decision cited State v. Oglesby, 164 La. 329, 113 So. 865 (1927). In Oglesby, the trial court, on motion of the district attorney, set aside a conviction allegedly based on insufficient evidence and proceeded with a second trial. This court correctly reversed the conviction in the second trial, but further commented that the first verdict, once vacated, "could not now sustain a sentence”. Id 113 So. at 866. That language was pure dicta because the first verdict was not before the court, the district attorney having conceded that the first verdict was not supported by sufficient evidence.
     
      
      . Interestingly, the trial judge was properly motivated in vacating the Neames conviction, while the conviction in Reed was vacated for the improper purpose of allowing the state a second chance to produce sufficient evidence.
     
      
      . The judge clearly erred when he contemporaneously found the defendant not guilty by reasons of insanity without appointing counsel, without a plea of insanity, and without a hearing. However; only the propriety of his vacating the conviction is relevant for present considerations.
     
      
      . Perhaps the trial judge, before vacating the conviction for possible lack of capacity, should have appointed counsel and conducted a hearing to determine whether the defendant had capacity when he waived counsel. If the evidence at the hearing had established defendant’s capacity to waive counsel, the conviction would have been left intact.
     