654 So. 2d 740 | La. Ct. App. | 1995
The defendant, Clarence Barber, was charged by bill of information with simple burglary of an inhabited dwelling, in violation of La.R.S. 14:62.2.
1. The trial court erred in allowing State Exhibit 1 to be introduced into evidence.
2. The trial court erred in allowing State Exhibit 7 to be introduced into evidence.
3. The trial court erred in adjudicating the defendant to be a fourth felony habitual offender.
Assignments of error numbers one and two were not briefed on appeal, and therefore, are considered abandoned. Uniform Rules — Courts of Appeal, Rule 2-12.4.
ASSIGNMENT OF ERROR NUMBER THREE
In this assignment of error, the defendant contends that the trial court erred in finding him to be a fourth felony habitual offender.
However, because we have discovered a patent error in the habitual offender bill of information, we must vacate the habitual of
DECREE
Accordingly, defendant’s conviction is AFFIRMED; the instant habitual offender adjudication and sentence are VACATED, and the case is REMANDED WITH INSTRUCTIONS that the trial court enter a judgment adjudicating the defendant to be a fourth felony habitual offender. Thereafter, the trial court shall resentence the defendant in accordance with the law in effect on the date of the instant offense, i.e., La.R.S. 15:429.1(A)(3), prior to its 1993 and 1994 amendments.
. The bill of information incorrectly cited La.R.S. 14:62.3 as the statutory citation. Nevertheless, error in the statutory citation shall not be grounds for dismissal of an indictment or for reversal of a conviction if the error or omission did not mislead the defendant to his prejudice. La.C.Cr.P. art. 464; State v. Jordan, 489 So.2d 994, 998 (La.App. 1st Cir.1986). The defendant did not object to this erroneous statutory citation, nor did he express any doubt as to the nature of the charge against him. The defendant was not misled by this erroneous statutory citation, and therefore, this patent error is not reversible.
.La.R.S. 15:529.1(C), as amended by Acts 1994, 3rd Ex.Sess., No. 85, Sec. 1, now provides for a seven-year cleansing period.