State v. ColemanState v. Coleman
Defendant, Rod Coleman, was charged with having committed attempted first degree murder on October 30, 1981, in violation of
On July 8, 1983, the State filed a Motion for Sentencing in Conformity with
ASSIGNMENT OF ERROR
Defendant contends the trial court erred in vacating his original sentence and imposing
The jurisdiction of the trial court is divested and that of the appellate court attaches, upon the entering of the order of appeal. Thereafter, the trial court has no jurisdiction over the matter except to:
(3) Correct an illegal sentence, or reduce a legal sentence in accordance with Article 913(B);
Additionally,
The first issue which must be addressed is whether the original sentence imposed was illegal. Defendant argues that, since this original sentence was within the guidelines of the attempted manslaughter statutes, it was legal. Attempted manslaughter is punishable by imprisonment at hard labor for not more than ten and one-half years.
In this case, the offense was committed with a firearm. Therefore, when defendant was convicted, the mandatory sentencing provisions of
Sentences not imposed without benefit of suspension, probation or parole when that restriction is mandated by statute are illegal sentences (unlawfully lenient). See State v. Telsee, 425 So.2d 1251 (La.1983); State v. Thomas, 439 So.2d 629 (La.App. 1st Cir.1983); State v. Jackson, 439 So.2d 622 (La.App. 1st Cir.1983), writs granted in part and denied in part, 443 So.2d 1123 (La.1984). A sentence imposed without compliance with the mandatory provisions of both
The second issue is whether the trial court may correct an illegal sentence after appeal, affirmance of the sentence on appeal, and the beginning of execution of the sentence.
The language of
Furthermore, the Official Revision Comment to
(a) The first sentence, taken from Fed. Rule 35, states the almost self-evident authority of the court to correct an illegal sentence at any time, for an illegal sentence is, in the contemplation of the law, no sentence at all. State v. Johnson, 220 La. 64, 55 So.2d 782 (1951). The phrase `at any time’ makes clear the court‘s authority to make a correction after the defendant has begun to serve the sentence. Such authority was squarely affirmed in United States v. Johnson, 142 F.Supp. 532 (E.D.Tex.1956), aff‘d, 241 F.2d 60 (5th Cir.1957), citing Bozza v. United States, 330 U.S. 160, 67 S.Ct. 645, 91 L.Ed. 818 (1947).
(b) The court‘s authority to correct an illegal sentence at any time, which includes the power to pronounce a legal sentence, applies when an order of appeal or writs have been granted. This authority of the trial court is specifically set forth in Art. 916. (emphasis added).
When a sentencing court discovers that a sentence imposed by it did not conform to the applicable penalty statute, it has a duty to correct the sentence so as to comply with the statute, even though service of the sentence first imposed has begun, and though the corrected sentence is required to be more onerous. Llerena v. United States, 508 F.2d 78 (5th Cir.1975).
Recent jurisprudence from the Louisiana Supreme Court makes it imperative that the trial court be able to correct an illegal sentence at any time. In State v. Napoli, 437 So.2d 868 (La.1983), the Louisiana Supreme Court prohibited the Court of Appeal from ordering the trial court to correct a patently illegal sentence and ordered reinstatement of that illegal sentence holding that an illegal sentence in favor of a defendant cannot be reviewed or corrected by the appellate court. But see, State v. Telsee, 425 So.2d 1251 (La.1983), where the Court recognized ex proprio motu that a sentence for forcible rape was unlawfully lenient because the district court did not order it to be served without benefit of probation, parole or suspension for at least two years. Again in State ex rel. Pierre v. Maggio, 445 So.2d 425 (La.1984), the Court required the Department of Corrections to consider parole eligibility for a defendant who was illegally sentenced with that benefit contrary to a statute that prohibited parole eligibility. Unless the trial court can correct the sentences in both the Napoli and Pierre situations these defendants are going to achieve parole eligibility when
Therefore, we find that the trial court did not err in correcting an illegal sentence after appeal and while the sentence was being executed.
Accordingly, we affirm the sentence reimposed by the trial court.
AFFIRMED.
Notes
When the court makes a finding that a firearm was used in the commission of a felony and when suspension of sentence is not otherwise prohibited, the court shall impose a sentence which is not less than:
(1) The maximum sentence provided by law, in the same manner as provided in the offense, if the maximum sentence is less than five years, or
(2) Five years, in the same manner as provided in the offense, if the maximum sentence is five years or more.
Imposition or execution of sentence shall not be suspended and the offender shall not be eligible for probation or parole.
Notwithstanding any other provisions of law to the contrary, any person who uses a firearm or explosive device at the time he commits or attempts to commit the crime of second degree murder, manslaughter, aggravated battery, simple kidnapping, aggravated escape, aggravated burglary, or aggravated arson or attempted aggravated rape, attempted first degree murder or attempted aggravated kidnapping shall upon conviction serve a term of two years imprisonment for the first conviction and upon conviction for each second and subsequent offense listed in this Section, he shall serve a term of five years imprisonment. The penalty provided herein shall be in addition to any other penalty imposed under the provisions of this Title and such person shall serve the additional term of imprisonment without benefit of parole, probation, suspension of sentence or credit for good time and any adjudication of guilt or imposition of sentence shall not be suspended.
The prison terms provided under the provisions of this Section, shall run consecutively to any other penalty imposed upon conviction of any of the crimes listed in this Section.
If the appellate courts are restricted from correcting or ordering corrected a sentence illegal in favor of a defendant, and the parole board is required to honor an illegal sentence, serious problems are going to be presented even with the ability of the trial court to correct the sentence. It would become impossible for an illegal sentence to be corrected in the event it is acquiesed in by the State. Thus, a defendant charged with armed robbery could be sentenced, and the sentence suspended, or be given with parole and probation and absent a State motion to correct the sentence, it would stand. Consequently, mandatory sentencing requirements could be ignored if the State desired. Given the desire in so many instances to obtain a guilty plea, this result is not at all improbable. The crux of the matter is, given the right circumstances, a sentence patently in violation of a statute and thus illegal could be effectively imposed if there is agreement among the involved parties. We would be telling the legislature in effect that having a particular mandatory sentencing requirement is fine unless the principals in a criminal litigation, the trial judge, prosecutor and defendant choose to ignore it. Then, it is not worth the proverbial paper it is written on.
The correct view should be that when a statute sets mandatory requirements of a sentence, deviation from the mandate of the statute simply has no effect whether that deviation be in favor of or against a defendant. See Concurring Opinion, State v. Jackson, 439 So.2d at 628. It should also be noted that in Napoli the Court held that it was error for an appellate court to review a sentencing error unfavorable to a defendant because that would provide `a chilling effect on defendant‘s exercise of his right to appeal.’ If an illegal sentence can be corrected before appeal (