State v. BakerState v. Baker
- Reporters:
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- Before:
- Drew
Lead Opinion
| ^onolo Anton Baker has appealed his adjudication and sentence as an habitual offender, contending that his habitual offender conviction was an impermissible double enhancement of a previous penalty. We affirm.
BAKER’S RELEVANT CRIMINAL HISTORY
• Aggravated Battery Conviction on December 16, 1996;
• Felony Possession of Stolen Things Conviction on September 13,1999;
• Possession of a Firearm by a Convicted Felon Conviction on January 27, 2005; and
• Habitual Offender adjudication (at issue) on July 25, 2005.
Using his December 16, 1996, conviction of aggravated battery as a predicate, the state charged Baker with possession of a firearm by a convicted felon in violation of
The state then filed an habitual offender bill pursuant to
^DISCUSSION
In Baker’s view, the trial court erroneously adjudicated him a multiple offender by improperly basing the adjudication on his conviction as a felon in possession of a firearm under
In this matter, two separate underlying (prior) felonies were utilized as predicates by which to support Baker’s felony firearm conviction and his habitual offender adjudication. The state argued that enhancement under
Baker relied upon State v. Sanders, 337 So.2d 1131 (La.1976), and State v. Firmin, 354 So.2d 1355 (La.1978). In Sanders, supra, a 1955 armed robbery conviction, a 1961 armed robbery conviction, and a 1970 attempted simple burglary were used as predicates in a 1975 conviction for possession of a concealed weapon by a convicted felon. The same two armed robbery convictions and the attempted simple burglary conviction were used to support a multiple offender indictment. In affirming the quashing of the multiple offender indictment, Justice Calogero wrote:
[W]e find that the penalty provisions enacted in R.S. 14:95.1 (felon in possession) were intended by the legislature to delimit the permissible punishment for that offense because the statute itself takes into account the fact of defendant’s previous felony conviction and the legislature gave no indication that it wanted the multiple-billing procedure (habitual offender proceedings) Uto remain available as a vehicle for further enlargement of the penalty.
Sanders, 337 So.2d at 1135.
The habitual offender law,
In State v. Hymes, 513 So.2d 371 (La.App. 4 Cir.1987), the Fourth Circuit stated that a felon in possession violation could support an habitual offender conviction so long as the same underlying felony was not used to Lsupport both. Hymes had two armed robbery convictions plus a conviction as a felon in possession. Following a conviction for possession with intent to distribute drugs, Hymes was convicted as a fourth felony offender. The Hymes court explained that the use of a conviction for possession of a firearm by a convicted felon,
In State v. Harrison, 32,643 (La.App.2d Cir.10/27/99), 743 So.2d 883, writ denied, 99-3352 (La.6/30/00), 765 So.2d 327, this court vacated Harrison’s enhanced sentence as a third felony offender. The adjudication was based upon Harrison’s 1987 conviction for distribution of marijuana, a 1994 conviction for possession of marijuana, second offense, and his conviction for distribution of cocaine. Citing Hymes, supra, the court noted that the distribution of marijuana, second offense, required proof of the predicate offense, distribution of marijuana, which resulted in a double enhancement.
Following convictions for possession of crack cocaine, simple escape and aggravated battery, the defendant in State v. Smith, 2005-0375 (La.App. 4 Cir. 7/20/05), 913 So.2d 836, was convicted as a quadruple | soffender. The habitual offender conviction was based upon earlier convictions for possession of a stolen vehicle over $500; possession of marijuana, second offense; and attempted possession of cocaine. The Fourth Circuit rejected Smith’s argument that his multiple offender conviction resulted from a double enhancement of his conviction for possession of marijuana, second offense. The opinion distinguished Hymes and Harrison because the underlying offense for Smith’s conviction of distribution of marijuana, second offense, was not used to support his habitual offender conviction.
In State v. Iverson, 37,369 (La.App.2d Cir.9/24/03), 855 So.2d 835, writ denied, 2003-2950 (La.5/14/04), 872 So.2d 510, this court found no double enhancement because the predicate crime was only used to support the conviction of possession of cocaine, second offense, and not the subsequent habitual offender bill. Following his conviction for possession of cocaine, second offense, Iverson was adjudicated a third felony offender. The conviction for possession of cocaine, second offense, was based upon a 1997 conviction for possession of cocaine. His multiple offender conviction was based upon a July 1993 conviction for possession of stolen things, a December 1997 conviction of distribution
Citing Iverson, supra, this court in State v. White, 39,634 (La.App.2d Cir.6/16/05), 907 So.2d 180, writ denied, 2005-2097 (La.3/10/06) 925 So.2d 510, noted that the prohibition against double enhancement does not apply to the use of multiple offender proceedings as long as the same offense is not used twice to enhance the penalty imposed. After the defendant was adjudicated a fifth felony offender, the court held that
Using his December 16, 1996, conviction of aggravated battery, the state charged Baker with possession of a firearm by a convicted felon in violation of
DECREE
For the preceding reasons, we affirm the habitual offender adjudication and the sentence.
AFFIRMED.
Rehearing
APPLICATION FOR REHEARING
Before BROWN, GASKINS, CARAWAY, DREW, and MOORE, JJ.Rehearing denied.