STATE ex rel. Rudolph WILSON v. Ross MAGGIO, Jr., Warden, Louisiana State Penitentiary.
No. 82-KH-0415.
Supreme Court of Louisiana.
November 29, 1982.
422 So. 2d 1121
CALOGERO, Justice.
Calvin Johnson, New Orleans, Supervising Atty., Loyola Law School Clinic.
CALOGERO, Justice.
Relator contends that his adjudication in 1975 as a third offender was erroneous and his fifteen year sentence illegal. Pertinent to resolution of this question, relator claims that the trial judge mistakenly took into account a 1974 Federal conviction. Had he not done so, the statutory five year cleansing period of
We find merit in his contention, upset the multiple offender adjudication, vacate his fifteen year sentence and remand the case to the trial court for resentencing.
On March 6, 1975, defendant committed an aggravated battery upon one Geneva Poche, a violation of
We granted this writ upon relator‘s pro se application.
The multiple offender bill coupled with other pertinent information of record establishes the following:
October 10, 1950—20 year sentence for attempted murder. Following commutation to 10 years, defendant earned a good time release on April 24, 1957.
September 22, 1967—3 year sentence for negligent homicide. Defendant earned a good time release on August 28, 1969.
July 31, 1974—4 years, suspended, with 4 years active probation, for violation of
26 U.S.C. § 5861(d) , a provision of the Federal Gun Control Act which prohibits receipt or possession of an unregistered firearm.
On March 6, 1975, defendant committed the aggravated battery which prompted the third felony offender adjudication and fifteen year sentence we are now reviewing.
There are two relevant legal propositions which dictate our result here. First,
The second proposition is that in order to use a prior felony offense to support a multiple offender adjudication there must not have intervened, before commission of another felony, a five year “cleansing” period, that is, five years between the end of the previous sentence and the commission of another felony.2 In determining the expiration of a given sentence, it is not the imposed sentence which governs, but the date of the person‘s actual discharge from supervision by the department of corrections. Discharge from supervision can take place earlier than the theoretical date on which the initial sentence would have terminated, because of a pardon, commutation or good time credit. Or it can take place later because of parole revocation. State v. Anderson, 349 So.2d 311 (La.1977).
In Anderson, we held:
Construing the act as a whole, the expiration of the sentence intended to fix the commencement of the five-year “cleansing” period is the date of the individual‘s actual “discharge” from being subject to penitentiary confinement under the earlier conviction relied upon.
* * * * * *
The statutory intent, thus, is that a sentence expires when the prisoner is discharged from state custody and supervision, not when the theoretical date arrives on which the initial sentence would have terminated. Thus, when the convicted person is discharged earlier (as well as later) than the expiration date of the sentence initially sentenced, then the actual maximum sentence is that determined by his date of legal discharge, whether extended through revocation of parole or shortened by law due to `good time’ diminution of the initial sentence. It is not until the date of actual discharge that the individual has fully paid his debt to society, insofar as owed because of an offense for which he has been convicted.
Applying these principles to the present case, we find that relator was erroneously adjudicated a multiple offender because the July 31, 1974, federal conviction does not qualify under
United States Code, Title 26, § 5861(d), the federal statute under which defendant was convicted on July 31, 1974, provides:
It shall be unlawful for any person—
(d) to receive or possess a firearm which is not registered to him in the National Firearms Registration and Transfer Record.
The penalty for violation of that offense, as set forth in
However, under
The Louisiana statute, analogous to the federal statute which defendant violated, is
No person shall receive, possess, carry, conceal, buy, sell, or transport any firearm which has not been registered or transferred in accordance with this Part.
The penalty provided for violation of this statute, in 1974, at the time relator committed the offense, was a fine of “not less than one hundred dollars nor more than one thousand dollars and imprison[ment] for not less than three months nor more than twelve months.”3 Since Louisiana defines a felony as a “crime for which an offender may be sentenced to death or imprisonment at hard labor” [
Once we exclude consideration of the July 31, 1974, federal offense, we find that the September 22, 1967, conviction cannot be used to support a habitual offender adjudication because more than five years elapsed between August 28, 1969, the date of relator‘s release upon completion of the 1967 sentence (with credit for good time), and the commission of the March 6, 1975 offense. Accordingly, relator should not have been adjudicated a multiple offender and the resulting fifteen year sentence was illegal. He must be resentenced in accordance with law. Resentencing is to take place as soon as is practically possible inasmuch as relator may be entitled to be released with consideration of good time credits. He was sentenced on January 5, 1976, with credit for time served from March 15, 1975, a full 7 and ½ years ago, and the maximum sentence he can receive upon resentencing is 10 years.
It has been suggested that relator should be denied the relief he seeks because he may have pled guilty at the multiple offender adjudication. The minutes do not indicate that relator pled guilty to the multiple offender charge. The minutes merely state that the relator “admitted to being the same person charged in the Bill of Information R.S. 15:529.1,” and that in this case the “court found the defendant a third offender.” Therefore we need not determine whether a “guilty plea” in a multiple offender proceeding bars review of a sentence illegal because of underlying error, whether of a legal or factual nature.4
Decree
For the foregoing reasons we vacate relator‘s illegal fifteen year sentence, imposed following his erroneous adjudication as a third felony offender, and remand the case to the trial court for resentencing in conformity with law.
SENTENCE VACATED; REMANDED FOR RESENTENCING.