State v. BullockState v. Bullock
James A. Bullock was sentenced to serve forty-two years at hard labor as a second offender under the provisions of the Habitual Offender Law.
ASSIGNMENT OF ERROR NO. 1
A hearing for sentencing defendant as a second offender under the Habitual Offender Law (
A motion for continuance shall be by written motion alleging spеcifically the grounds upon which it is based, and when made by defendant, must be verified by his or his counsel‘s affidavit.
ASSIGNMENTS OF ERROR NOS. 2 AND 4
During the hearing at which defendant was sentenced as a second offender, defense counsel made certain oral motions referring to a previous plea of prescription and a motion to quash the “double billing” рrocedure. These motions were reurged and overruled by the trial judge.
In reference to the plea of prescription, defendant argues that, while he was found guilty of murder and sentenced to death on February 2, 1967, the district attorney did not file an information accusing him of a previous felony conviction and asserting that he should be sentenced in conformity with
We do not agree.
If, at any time, either after conviction or sentence, it shall appear that a person convicted of a felony has previously been convicted of a felony under the laws of this state, or has been convicted under the laws of any other state or of the United States; or any foreign government or country of a crime, which, if committed in this state would be a felоny, the district attorney of the parish in which subsequent conviction was had may file an information accusing the person of previous conviction. . . .
(Emphasis added.) In State ex rel. Williams v. Henderson, 289 So.2d 74 (La.1974), we held that
In view of the protracted history of this litigation as set forth in footnote 1 hеrein, we do not consider that the delay in filing the information accusing defendant of a previous conviction and asserting that he should be sentenced under
Next we consider defendant‘s contention that the information should be quashed for the following reasons: (1) the state failed to allege an offеnse under a valid statute as the conviction by a court martial is not an offense under the laws of any other state or of the United States, or any foreign government or country or within this state; (2) the Habituаl Offender Law is unconstitutional and specifically violates
None of these contentions have merit. The first contention is answered by the explicit wording of
A. Any person who, after having been convicted within this state of a felony, or who, after having been convicted under the laws of any other state or of the United States, or any foreign government or country of a сrime which, if committed in this state would be a felony, thereafter commits any subsequent felony within this state upon conviction of said felony shall be punished as follows:. . . .
(Emphasis added.) Defendant was conviсted of the crime of murder in 1945 by a court martial while serving as a soldier in Italy during World War II. He was prosecuted under the Uniform Code of Military Justice, a law of the United States.
In regard to the assertion that the Habitual Offender Law is unconstitutional, we recently stated in State v. Williams, 322 So.2d 177 (La.1975):
. . . Habitual offender statutes have survived constitutional attack so often that their validity is no longer a matter of serious doubt. See McDonald v. Massachusetts, 180 U.S. 311, 21 S.Ct. 389, 45 L.Ed. 542 (1901). The constitutionality of
La.R.S. 15:529.1 has been upheld by this court several times. It is well established that the law does not make it a crime to be a multiple offender; it merely prescribes an enhanced penalty for multiple offenders. As an enhancement-of-penalty provision, the statute does not punish a status, nor does it impose cruel and unusual punishment. See State ex rel. Williams v. Henderson, 289 So.2d 74 (La.1974); State v. Vale, 252 La. 1056, 215 So.2d 811 (1968), rev‘d on other grounds, 399 U.S. 30, 90 S.Ct. 1969, 26 L.Ed.2d 409 (1970); State v. Guidry, 169 La. 215, 124 So. 832 (1929). See also Price v. Allgood, 369 F.2d 376 (5th Cir. 1966), cert, denied, 386 U.S. 998, 87 S.Ct. 1321, 18 L.Ed.2d 349 (1967).
Accordingly, this contention is without substance.
A multiple offender indictment need only inform the accused that he was previously convicted of a felony within the time period set forth in the statute (
The third contеntion under the motion to quash is that the “double billing” procedure constitutes double jeopardy. We have previously held that
The last contention is equally without merit. Defendant made no showing that he was not afforded adequate notice or that the statute violates the equal protection or due process clauses of the fourteenth amendment.
In sum, Assignments of Error Nos. 2 and 4 are without merit.
This assignment of error has been abandoned as it is neither briefed nor argued. State v. Blanton, 325 So.2d 586 (La.1976); State v. Carlisle, 315 So.2d 675 (La.1975); State v. Edwards, 261 La. 1014, 261 So.2d 649 (1972).
ASSIGNMENT OF ERROR NO. 5
Defendant contends that his request for the required legal delay between conviction and sentence wаs improperly denied by the trial judge.
We find no merit in this contention. The Habitual Offender Law,
ASSIGNMENT OF ERROR NO. 6
Defendant asserts that the entire proceedings indicate a personal prejudice on the part of the trial judge against him.
A general allegation to this effect is made without specifically pointing out any particular facts to show prejudice or hostility on the part of the trial judge. We have carefully examined the record and find no such evidence. Nor do we find that defendant‘s rights were infringed upon or that he was denied a fair hearing. On the contrary, a full hearing was held and defendant was not curtailed in any way from presenting his defense. The allеgation made is simply not supported by the record of the proceedings. Assignment of Error No. 6 is without merit.
DECREE
For the reasons assigned, the sentence is affirmed.