State v. BattagliaState v. Battaglia
Craig J. Cimo, Gretna, for defendant-respondent Salvatore A. Battaglia.
William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John M. Mamoulides, Dist. Atty., Abbott J. Reeves, Asst. Dist. Atty., for plaintiff-relator.
DIXON, Justice.
Defendants, Battaglia and Reynier, were charged in a grand jury indictment with distribution of heroin in April, 1975. Found guilty as charged by jury on February 17, 1976, they were sentenced to life imprisonment at hard labor on March 18, 1976. Both appealed.
While the appeals were pending a motion for resentencing was filed, and came before the trial court on May 31, 1979. The court noted that it retained jurisdiction “to correct an illegal sentence,” and suspended the life sentences, placing defendants on three years probation, with certain conditions.
Writs were granted on application by the state to review its contention that the sentences of mandatory life imprisonment were not illegal, and that the trial court lacked jurisdiction to change the sentences.
At the time the district court imposed these sentences,
The trial judge considered that, although an appeal had been filed by defendants, under the provisions of
Although the sentences imposed by the trial judge were legal,
It might be argued that, if the district judge lacked the jurisdiction to amend the sentences (and suspend them), he likewise lacked the jurisdiction to vacate the previously imposed life sentences. It is apparent that the trial judge is of the opinion that the life sentences are excessive, and were imposed under a mistake of law. In the interest of justice and efficiency we deem it appropriate in this case to vacate all prior sentences and remand the case for resentencing.
Accordingly, the amended sentences of defendants are vacated and the case is remanded for resentencing in accordance with
TATE, J., concurs and assigns written reasons.
CALOGERO, J., concurs.
DENNIS, J., concurs for reasons assigned by TATE, J.
TATE, Justice, concurring.
I concur with the majority disposition, but I disagree with the majority‘s rationale.
The issue before us concerns the power of a trial court during the pendency of an appeal to modify an excessive sentence imposed as the result of an error of law.
The defendants were charged with distribution of heroin on November 29, 1974.
At the time the district court imposed these sentences, it expressly did so with great reluctance. It stated that life imprisonment for a minor transaction by two youthful first offenders was greatly disproportionate punishment for the conduct and offenders involved. In imposing “with great reluctance” this “harshest” penalty, the district judge stated it was a matter “in which I have no discretion.” Sentencing hearing, p. 8.
The trial judge thus erred as a matter of law in finding that he had no discretion to suspend all or part of the sentence. Prior to its amendment in 1977, the trial judge was not required to impose mandatory imprisonment for the life sentence provided by the statute. He was, according to the individual circumstances, permitted to suspend the sentence under appropriate probation conditions. State v. Hopkins, 367 So.2d 346 (La. 1978); State v. Terrebonne, 364 So.2d 1290 (La. 1978); State v. Whitehurst, 319 So.2d 907 (La. 1975).
In State v. Hopkins, 367 So.2d 346 (La. 1978), a showing similar to the present one was made that the sentencing judge was unaware of his discretion to suspend the sentence. Accordingly, we set aside the sentence of mandatory imprisonment and remanded for re-sentencing. In Hopkins, the sentence was vacated by the appellate court and remanded for re-sentencing.
In the present cases, even though the appeals were pending, the trial court realized its own error of law and corrected it. On motion of the defendants, it vacated the sentences imposed under an error of law, and it then exercised its legislatively-granted discretion to suspend the balance of the life sentences beyond time actually served, subject to certain conditions of probation.
We granted the state‘s application for certiorari, 371 So.2d 1339 (1979), to review its contentions that the sentence of mandatory life imprisonment, although imposed under an error of law and properly suspendable within the discretion of the trial judge, was nevertheless not illegal on its face and was thus not within the jurisdiction of the trial court to correct at any time as an illegal sentence,
The trial judge held that it was authorized by
The trial court in part relied upon State v. Terriault, 369 So.2d 125 (La. 1979). There, we held that a sentence imposing the maximum sentence of imprisonment provided by the statute should be vacated, because the trial court did not state the reasons and afford this court an opportunity to review the defendant‘s contention of excessiveness constitutionally afforded him by
In Terriault, as in the present cases, the sentence was imposed prior to the effective date of
I construe Terriault and Jackson, as well as State v. Cox, 369 So.2d 118 (La. 1979), as holding that the trial court may correct during the pendency of an appeal a sentence legal on its face, but imposed by reason of an error of law or in an illegal manner, if requested to do so by proper pleadings filed by the defendant.
Under these limited circumstances, the trial court may, on request of the defendant, amend a sentence legal on its face to correct these illegalities—at least so long as the pleading is filed within the appellate delay or while an appeal is pending. This is consistent with the view taken in State v. Nine, 315 So.2d 667, 669 (La. 1975), where we stated (although by way of dicta) that “the trial court had the authority under
When the defendant‘s pleading is so timely filed, under the holdings implied by Cox-Terriault-Jackson the amendment of the apparently legal sentence is properly made as “prior to the beginning of [the] execution of the sentence.”
Judicial economy alone justifies our refusal to disturb his action in vacating the sentences improperly imposed, whether we regard this vacation as resulting from exercise of our own supervisory review requiring vacation of the sentences, or whether instead we regard our action to be that of affirming the trial court‘s authorized vacation of these sentences as improperly imposed.
Accordingly, I concur in our decree vacating the original sentences imposed, although I would further affirm the suspended sentences re-imposed rather than requiring the trial court to re-sentence the defendants (again) to suspended sentences.