State v. BouzigardState v. Bouzigard
William J. Guste, Jr., Atty. Gen., LeRoy Hartley, Special Coun. Atty. Gen., Francis Dugas, Dist. Atty., Walter Naquin, Jr., Asst. Dist. Atty., for plaintiff-appellee.
CALOGERO, Justice.
Defendant, Donald Bouzigard, was charged by bill of information with having violated
On April 24, 1973, the court sentenced the defendant to be committed to the Louisiana Department of Corrections for a period of three years at hard labor. The defendant has appealed his conviction and sentence.
Although several bills of exceptions were reserved during the trial, none were perfected. Nor did defendant or anyone on his behalf file a brief or appear for oral argument. Therefore, our review is limited to errors discоverable by a mere inspection of the pleadings and proceedings without inspection of the evidence.
The pleadings and proceedings, including the corrected minutes, indicate that the defendant was tried under a bill of information charging him with simplе possession of marijuana. The bill did not allege that defendant had been previously convicted of a similar offense. Accordingly, the charge was a misdemeanor.
On the day of sentencing, however, the State attempted to amend the bill of information to include the following:
... Donald Bouzigard had previously been convicted in State of Louisiana vs. Nos. 40001, 40002, and 40003, Donald Bouzigard, on September 3, 1971.
It was on the basis of this amended bill of information that the court imposed a felony sentence, namely, three years at hard labor in the custody of the Louisiana Department of Corrections.
There are two reasons why this sentence cannot stand. First of all, the amended bill of information does not comply with the requirements of
If it is necessary to allege a prior conviction in an indictment, it is sufficient to allege the name or nature of the offense and the fact, date, and court of the conviction.
The amended bill of information in this instance does not allege the name or nature of the offense nor the court of the cоnviction.
There is, however, another reason why the amended bill of information may not support the sentence imposed.
There are several provisions in our criminal code which provide for enhanced penalties for repeat offenders:
In a more recent decision of this Court involving prosecution for operating a motor vehicle while under the influеnce of alcoholic beverages as a second offender, this Court stated, But even though prior convictions do not constitute a material ingredient of the crime here charged, it is our view that in order for the accused to be sentenced аs a second, third, or fourth offender under the provisions of this statute the prior convictions must be alleged in the affidavit, information, or indictment. State v. Montgomery, 250 La. 326, 195 So. 2d 285, 287 (1967).
As in the case of prosecution for multiple offender DWI, the prosecution for multiple offender possession of marijuana, must include in the bill of information the charge that the defendant had been previously convicted of the same offense.
Where a defendant claims the right to have the crime for which it is sought to convict him fully set forth in the act of accusation, his right to have a full statement cannot be denied to him on the ground that the state treats him with special leniency, and withholds the charge аpprehending [sic] on a charge of prior conviction, for the reason that it may prejudice him before the jury. If the averment is essential, it should be made a ground in the affidavit. We are of the opinion that it is essential; that the first conviction must be alleged. It enters into and makes part of the last offense. It is an aggravation which gives rise to an increase of the punishment. In matter of increasing the punishment, it is an essential. 51 So. at 682.
Compagno was re-affirmed in State v. Daniel, 141 La. 423, 75 So. 102 (1917).
It should be noted that prosecution under
... the indictment shall not contain an allegation of a prior conviction of the defendant unless such allegation is necessary to fully charge the offense.
As the defendant was not charged as a second offender nor convicted of same thе sentence imposed is illegal and the case must be remanded for the imposition of a legal sentence. State v. Carter, 168 La. 807, 123 So. 332 (1929).
For the reasons assigned the sentence is annulled and set aside and the case is remanded to the District Court with instructions to sentence the dеfendant, Donald Bouzigard, on the misdemeanor charge on which he was billed, prosecuted and convicted.
BARHAM, J., concurs with reasons.
BARHAM, Justice (concurring).
I concur in the reversal of the defendant‘s conviction. I am of the opinion that the majority has correctly stated the law as it now exists in reaching that result. However, I feel I must call attention to the fact that the law is inconsistent with our general scheme of criminal justice and that there is opportunity and, in my opinion, need for change in the statutory law so that a more equitable, just and consistent result may be obtained.
Defendant here is charged with the possession of marijuana, and, if correctly charged under the law, the indictment would have charged him with possession of marijuana as a second offender, naming the former offense of possessiоn, the nature, the fact, the date and the court where the conviction was had.
There are a number of criminal statutes in the Criminal Code, Title 14, which likewise enhance the penalty in accord with the number of convictions. Subsequent convictions of theft under
If it is necessary to allege a prior conviction in an indictment, it is sufficient to allege the name or nature of the offense and the fact, date, and court of the conviction.
This article, along with the provisions for the crimes previоusly listed, makes it necessary in this case to spread before the jury, during the trial of a defendant for one offense, all prior convictions, in order that the penalty may be enhanced. In construing the multiple offender statute, we have held that the jury cannot be informed of the previous convictions which will later be spread before a judge alone so that he may determine the penalty to be imposed. State v. Jones, 209 La. 394, 24 So.2d 627 (1945). The multiple offender statute permits unrelated felonies to be used for the purpose of еnhancing the penalty. Contrarily, under the statutes similar to the one we deal with here, only offenses of the same nature may be used to enhance the penalty. Under our Code and our jurisprudence, the State is required to place before the jury thesе earlier convictions by way of the bill of indictment before the State can try the defendant for the single offense with which he is charged.
The determination of whether or not there have been prior convictions for the same offense is a judge question. This question could be decided before trial under a pretrial device requiring the judge to determine if and how many prior convictions for the same offense have been returned against the particular defendant. For example, under the statute which this defendant was charged, it would be a simple proceeding to present evidence of any prior convictions for possession of marijuana against this particular individual. Upon making that determination, the judge could then order a trial by judge or by the proрer jury for the specific offense under which the defendant stands charged at the moment, according to the penalty provision which will be applied. The jury would not be informed of the prior offense. They would simply determine his guilt or innocence of the offense charged.
Our law condemns the use of other offenses during the trial of the defendant for a particular offense because of the overriding prejudicial effect it may have in the jurors’ minds of the guilt or innocence for the particular offensе charged. Particularly in crimes involving narcotics, prior offenses are highly prejudicial in determining whether or not a defendant is guilty of the particular offense of which he is presently accused.
While I again reiterate that the present law is as stated by thе majority, I am of the opinion that a correlation of these statutes that enhance punishment with the general concept in criminal justice that prior offenses should not be used in the prosecution of a defendant would lead to reform through a simple system. Prior convictions for the purpose of enhancement are, in my opinion, a judge question. That determination may be made before trial in order to determine the nature of the form required for the trial under the quality and quantity of the punishment. The defеndant may be afforded a fair, non-prejudicial trial on the guilt or innocence question which is presented and, if found guilty, the proper penalty may be imposed upon the defendant. This procedure appears to me
I respectfully concur.