State Ex Rel. Hebert v. HendersonState Ex Rel. Hebert v. Henderson
We granted certiorari, 282 So.2d 522 (1973), on the contention and showing made, on the basis of the minutes attached, that possibly a re-sentencing of the relator on burglary charges constituted double jeopardy. However, on the basis of the verbatim transcript of what actually toоk place at the time of the sentencing and of “re-sentencing“, we find no such issue present.
Based on what the minutes seem to reflect, the contention is madе in this context:
In 1970, the relator-defendant was charged with a burglary and a theft arising out of his conduct in committing an unauthorized entry into the Oustalet Ford premises and stealing over two thousand dollars therefrom. The burglary charge bore Criminal Docket No. 893-70, and the theft charge Criminal Docket No. 892-70. He pleaded guilty to both these charges. On October 8, 1970, he was sentenced, according to the minutes, to serve nine years in the penitentiary “in No. CR. 892 70” (i. e., the number of the theft charge) and then, to ten years in the penitentiary “in No. CR. 893 70” (i. e., the burglary charge).
The maximum sentence for the grade of theft charged is ten years,
In 1972, based upоn these minutes, the relator filed post-conviction proceedings in the district court of the parish where sentenced. He alleged the illegality of the burglary sentence and further alleged double jeopardy, in that he could not be convicted of both theft and burglary arising out of the same act and conduct, provable by the same evidence, and all part of a continuous offense.
The minutes of December 14, 1972 of the hearing on the post-conviction petition state that: “At this time the District Attorney moved to correct the sentence [as will be seen, the minute clerk omitted a reference here] and then moved to set aside the sentence in No. CR. 892 70 [i. e., the theft] and dismiss the charge. Counsel for the defendant moved to have the defendant‘s
Based on these minutes, as well as on those of 1970, the defendant then applied to this court for certiorari. The primary thrust of his complaint was, since he had first received a valid sentence on the theft charge, the subsequent sentence on the burglary charge should be annulled as constituting double jeopardy. He also suggests he should have been permitted to withdraw his plea of guilty to the burglary charge.
We expressly pretermit consideration of whether there might be substance in the relator‘s contеntion if the minutes reflected what actually occurred. The verbatim transcript of the colloquy at the time of sentencing and of resentencing shows the minutes to bе misleading and that they do not represent the actual trial court rulings.
In the first place, at the time of the original sentencing of October 8, 1970, the trial court‘s actuаl sentence was as follows: “* * * on CR-892-70, the charge of simple burglary, the Court will sentence you to serve nine years at hard labor. And on CR-893-70, the charge of theft, the Court will sеntence you to serve ten years at hard labor.” Tr. 15. In other words, although the trial judge inadvertently used the wrong docket numbers, he sentenced the defendant, first, on the burglаry charge to the maximum nine years and, next, on the theft charge to the maximum ten years.3
The post-conviction hearing was held on December 14, 1972. The verbatim transсript reflects that the error in the original 1970 minutes was noted by the court. The district attorney then moved “to correct the sentence given at the time“. Tr. 31. Pointing out that “thе first arraignment was on the simple burglary charge,” Tr. 31, the district attorney moved that the sentence on this charge, No. CR. 893-70, be corrected to reflect the actuаl statutory maximum of nine years. Tr. 32. The court granted this motion and corrected the sentence to nine years, in accord with “the intent of the original sentence thаt was imposed on the man.”4 Tr. 34.
Accepting the minute entry as correct for the moment, the ten-year sentence on the burglary charge was illegal as in excess of the statutory maximum, and it thus could be corrected at any time.
The trial court may always, at least in a contradictory hearing, correct the minutes when they do not cоrrectly reflect what transpired. As we stated in State v. Hoover, 203 La. 181, 13 So.2d 784, 787 (1943): “It is the settled rule of law that this court will be guided by the official minutes of the court as to what transpired during the trial of a cаse. [Citations omitted.] Facts incorrectly recorded in the minutes, however, may be corrected. [Citations omitted.]” See 1 Marr‘s Criminal Jurisprudence of Louisiana, Sеction 389 (1923); and see the many decisions cited
The original burglary sentence of nine years was thus correctly confirmed by the trial court‘s correction of the sentence, as reflected by the minutes, to that actually given on the charge at the time sentence was imposed.
With regard to the double jeopardy contention, both the district attorney and the trial judge moved to and did set aside the subsequent theft conviction on the grounds that, as alleged by the relator‘s post-conviction petition, it was barred by the double jeopardy prohibition. See
The final contention of the relator-defendant is that he should be allowed to withdraw his plea of guilty. Even aside from the showing that it was voluntarily made with the assistance of retained counsel, he is not entitled to do so after sentence has been imposed.
Decree
For the foregoing reasons, we find no error in the action of the district court confirming the original sentence of nine years on the burglary charge and correcting the minutes insofar as reflecting otherwise. The case is remanded for the limited purpose of permitting formal correction of the minutes in the respects noted, in order to reflect the actual actions of the court, see Footnote 3.
Sentencing on burglary charge confirmed.
DIXON, J., concurs.
The district has no power to nolle pros after conviction.