Opinion
No. 16422-KA.
October 31, 1984.
APPEAL FROM FOURTH JUDICIAL DISTRICT COURT, PARISH OF OUACHITA, STATE OF LOUISIANA, HONORABLE JOHN R. JOYCE, J.
Davenport, Files Kelly by Lavalle B. Salomon, Monroe, for appellant.
William J. Guste, Jr., Atty. Gen., Baton Rouge, Johnny Parkerson, Dist. Atty., Michael J. Fontenot, Asst. Dist. Atty., Monroe, for appellee.
Before MARVIN, JASPER E. JONES and FRED W. JONES, Jr., JJ.
The criminal code crimes of criminal damage to property under Sec. 55 and of illegal use of a dangerous instrumentality under Sec. 94 are not lesser included offenses of the crime of attempted second degree murder under Secs. 27 and 30.1. CCrP Art. 558, State v. Cook, 372 So.2d 1202 (La. 1979).
State v. Cook, supra, emphasizes the effect of the State's failure to amend the original bill as the law requires. The State did not attempt to supplement the record on appeal and did not comply with our request before oral argument to brief State v. Cook. When defendant pleaded guilty to the non-existent amended bills, the State informed the trial judge that the amended bills would be filed later.
The State's failure to file the amended bills unfortunately creates an error patent on the face of the record and requires our reversal of the trial court's actions, even though the trial judge was not at fault. C.Cr.P. Art. 920. The trial court simply was without jurisdiction to accept defendant's guilty pleas to non-existent amended bills of information. State v. Cook, supra.
Defendant's pleas to the non-existent amended bills and the sentences imposed under those pleas are set aside. Under this posture, the defendant remains charged with attempted second degree murder. We remand the case to the trial court to allow defendant to be tried on the original charge or to allow for further proceedings after proper amendment of the original bill.
REVERSED AND REMANDED.