State v. BellState v. Bell
Defendant was cоnvicted on June 19, 1984, of attempted second degree murder, in violation of
Defendant obtained another order of appeal from the new sentence. Only the assignments of error relating to the habitual offender sentence have been briefed. We consider abandoned the assignments unbriefed, State v. Joseph, 425 So.2d 1261 (La.1983), and we will consider only the two assignments of error that have been argued.
The first of the briefed assignmеnts contends that the District Attorney waited too long to file the habitual offender bill, and that the delay in sentencing divested the trial court of its sentencing power. Defendant argues that the State knew of his prior record no later than May 15, 1984, and yet the State dеlayed the filing of an habitual offender bill until after a sentence of 15 years was imposed. Defendant argues that there was no justification for this unreasonable delay, and that its only purpose was to affect the sentencing powers of the trial judge. Citing State v. Broussard, 416 So.2d 109 (La.1982), dеfendant argues that he had a right to know the full consequences of his conviction within a reasonable time, and that the proceedings to sentence under the enhancement of penalty provisions were unduly delayed, resulting in a divestiture of the sentencing power of the trial court. This assignment of error is without merit.
Under the statute, the State is authorized to charge a defendant as a multiple offender “If, at any time, either after the conviction or sentence, it shall appear that the person convicted of a felony” has previously been convicted of another felony.
In State v. Wilson, 360 So.2d 166 (La. 1978), the Louisiana Supreme Court addressed the issue of time limitations involved in filing an habitual offender bill. The court stated:
“This court has recognized that the enforcement of the Habitual Offender Law rеsts within the discretion of the district attorney. State v. Badon, 338 So.2d 665 (La.1976); State v. Overton, 337 So.2d 1201 (La.1976). However, the district attorney must file an habitual offender bill within a reasonable time after the prosecution knows that a defendant has a prior felony record. State v. Bell, 324 So.2d 451 (La.1975). Although
La.R.S. 15:529.1 does not allow an indefinite time in which a district attоrney may file an habitual offender bill once such information is available, neither does it impose a specific prescriptive period in which the district attorney must act upon receipt of the necessary information. State v. McQueen, 308 So.2d 752 (La.1975).”
Here, the district attorney was aware of the defendant‘s prior felony convictions no later than May 15, 1984, as evidenced by the district attorney‘s answer to the defendant‘s motion for discovery. On June 29, 1984, 10 days after the defendant‘s conviction and four days after the initial sentencе was imposed, a bill of information was filed charging the defendant as an habitual offender. In Wilson, supra, the court found an even longer delay between the State‘s discovery of the defendant‘s prior felony convictions and the actual filing of the habituаl offender bill to be reasonable, saying:
“In the instant case, the district attorney filed an information accusing defendant of a previous felony conviction approximately one month after receipt of information that defendant had beеn previously convicted of a felony and after defendant‘s convictions for the instant offenses and approximately two weeks after defendant was sentenced on those convictions. Under these circumstances, we do not consider that the district attorney acted unreasonably in delaying the institution of the habitual offender proceeding even though such delay resulted in the mandatory prohibition against diminution of defendant‘s sentences for good behavior because of the amendmеnt to
La.R.S. 15:571.3 which went into effect in the interim.”
In the present case, the bill of information charging the defendant as an habitual offender was filed only 10 days after the defendant‘s conviction as compared to one month in Wilson. The delay in the present case was reasonable.
In evaluating the argument that the delay operated to divest the trial court of its sentencing power, we have considered the just-published opinion in State v. Coleman, 465 So.2d 709 (La.1985). That case held that the firearm penalty enhancement statutes may not be applied in a casе for the first time after execution of a legal sentence begins, or after an order of appeal has been granted. In that case, Coleman was given a five year hard labor sentence for attempted manslaughter. Although the crime was сommitted with a gun, the mandatory firearm penalty enhancement statutes,
In our present case, the original 15 yеar sentence was legal, and the entry of an order of appeal occurred before the habitual offender bill was filed. In our opinion,
“If the judge finds that he has been convicted of a prior felony or felonies, or if he acknowledges or confesses in open court, after being duly cautioned as to his rights, that he has been so convicted, the court shall sentence him to the punishment prescribed in this Section, and shall vacate the previous sentence if already imposed, deducting from the new sentencе the time actually served under the sentence so vacated.”
In the Williams and Maduell decisions, supra, the court found that Articles 881 and 916 of the Code of Criminal Procedure are in apparent conflict with section 529.1 of Title 15 of the Revised Statutes. The court said, in Maduell, supra, at page 830:
“In these сircumstances, where one statute deals with a subject in general terms, and another deals with a part of the same subject in a more detailed way, the two should be harmonized if possible; but if there is any conflict the latter will prevail. Abbott v. Parker, 259 La. 279, 249 So.2d 908 (1971); Arata v. Louisiana Stadium and Exposition District, 254 La. 579, 225 So.2d 362 (1969); State v. Mejia, 250 La. 518, 197 So.2d 73 (1967); Sands, Sutherland Statutory Construction § 51.05 (4th ed. 1973).”
The court concluded that
For these reasons, it is our opinion that the trial court was authorized, upon the completion of multiple offender proceedings, to vacate his previous sentence and reimpose a sentence under the provisions оf
Defendant‘s second assignment of error concerns the conditions “without benefit of parole, probation or suspension of sentence” which the trial judge imposed on the 50 year sentence. Defendant argues that these prohibitions were imposed without legal authority. He cоrrectly points out that in
Those parts of the penalty clause of
“D. Whoever attempts to commit any crime shall be punished as follows:
“(1) If the offense so attempted is punishable by death or life imprisonment, he shall be imprisoned at hard labor for not more than fifty years;
* * * * * *
“(3) In all other cases he shall be fined or imprisoned or both, in the same manner as for the offense attempted; such fine or imprisonment shall not exceed one-half of the largest fine, or one-half of the longest term of imprisonment prescribed for the offense so attempted, or both.”
The crime which defendant attempted to commit,
There are other statutes, however, which, in our opinion, render the sentence imposed herein without benefit of parole, probation or suspension, a legal one. These statutes are
Although sentenced as an habitual offender, the penalty provisions of the underlying offense (in this case
“It is not a crime to be an habitual offender. The statute increases the sentence for a recidivist. The penalty increase is computed by reference to the sentencing provisions of the underlying offense. Similarly, the conditions imposed on the sentence are those called for in the reference statute.”
“A person convicted of a third or subsequent felony and committed to the Department of Corrections shall not be eligible for parole.”
Since the present defendant was sentenced as a third felony offendеr, he was eligible for neither parole, nor probation or suspension of sentence, and it follows that it was correct for the trial judge to impose these prohibitions in the sentence. This assignment of error is without merit.
For these reasons, the conviction and sentence are affirmed.
AFFIRMED.