State v. DavenportState v. Davenport
This matter arises out of a writ of review, which was granted by this Court, regarding defendant‘s conviction for direct contempt of court under
The basic facts are not relevant to the issues presented, and, accordingly, need not be repeated.
In his brief, the defendant raised one assignment of error; however, because this matter was placed in an appellate posture for review, we have examined the record for patent error pursuant to
For the purpose of an error patent review, the “record” in a criminal case includes the caption, the time and place of holding court, the indictment or information and the endorsement thereon, the arraignment, the plea of the accused, the bill of particulars filed in connection with a short form indictment or information, the mentioning of the impaneling of the jury, the minute entry reflecting sequestration in a capital case, the verdict and the judgment or sentence. State v. Oliveaux, 312 So.2d 337 (La.1975) and State v. Agee, 508 So.2d 1033 (La.App. 5th Cir.1987).
Where the conviction has been obtained by a plea of guilty, the issue of whether the accused was properly “Boykinized” also constitutes a proper inquiry in an error patent review. State v. Godejohn, 425 So.2d 750 (La.1983); State v. Martinez, 472 So.2d 123 (La.App. 5th Cir.1985).
THE PLEA
In Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), the United States Supreme Court emphasized three federal constitutional rights which are waived by a guilty plea: the privilege against self-incrimination, the right to a trial by jury, and the right to confront one‘s accusers. The court then announced its unwillingness to presume waiver of these rights from a silent record. Boykin was adopted by the Louisiana Supreme Court and was held to apply to all pleas of guilty subsequent to December 8, 1971. State ex rel. Jackson v. Henderson, 260 La. 90, 255 So.2d 85 (1981); State ex rel. LeBlanc v. Henderson, 261 La. 315, 259 So.2d 557 (1972).
In this case, the defendant pled guilty to reckless operation of a motor vehicle and driving without a license in his possession, and he received a sentence of six months, suspended, for these offenses. No Boykin colloquy took place prior to the entry of the guilty plea. The record contains no waiver of rights form and is silent as to whether defendant was informed of his rights and whether he knowingly and voluntarily waived those rights by pleading guilty. In State v. Jones, 404 So.2d 1192, 1196 (La.1981), the Louisiana Supreme Court determined that in misdemeanor cases, “boykinization” is only required for
Accordingly, the plea is invalid. See State v. Jones, 517 So.2d 402 (La.App. 5th Cir.1987).
THE VERDICT
In State v. Jennings, 478 So.2d 913, 915 (La.App. 5th Cir.1985), this Court states
Under the provisions of Article 810 of the Code of Criminal Procedure, the verdict of the jury (which forms the basis for a subsequent sentence) must be in writing and signed by the foreman. Article 820 of the Code of Criminal Procedure provides “all [sic] provisions of this Chapter [both Articles 810 and 820 in the same chapter of the Criminal Code] regulating the responsiveness and effect of verdict shall apply to cases tried without a jury.[“] Hence, it follows that where the conviction is by the bench, the judge must sign the judgment for it to have the responsiveness and effect of a verdict.
Upon examining the record, we found an unsigned minute entry and a transcript of the oral verdict rendered by the trial court. However, there is no judgment signed by the trial court. The failure of the court to render a written judgment is patent error and a fatal defect in the proceedings. State v. Jones, supra.
THE SENTENCE
Finally, patent error is present in the sentencing of the defendant. The defendant pled guilty to reckless operation of a motor vehicle and to driving without a license on his person. Those crimes were charged as two separate counts on the bill of information. However, the trial court sentenced the defendant to a single term of six months, suspended.
The defendant was convicted of reckless operation of a motor vehicle (first offense) in violation of
The first violation of the provisions of this Chapter or any regulation of the department, secretary, and commissioner made pursuant thereto shall be punished by a fine of not more than one hundred seventy-five dollars or by imprisonment for not more than thirty days, or both, unless otherwise specifically provided. A subsequent violation shall be punished by a fine of not more than five hundred dollars or by imprisonment for not more than ninety days, or both.
It was not alleged that the violation of Title 32 was a second offense; therefore, it should be considered a first offense.
This sentence is illegal because it exceeds the statutory maximum allowed by the statute. The maximum penalty for reckless operation of a motor vehicle, first offense, is 90 days. The maximum penalty for driving without a license, first offense, is 30 days. The trial court sentenced the defendant to six months, or roughly 180 days. Even if the court imposed two consecutive sentences, the maximum term would have been 120 days, and the 180-day term would be excessive.
Moreover, the defendant was convicted of two counts, and the trial court sentenced him to only one six-month sentence. When two or more offenses are based on the same act or transaction, a more appropriate sentence is two terms, to be served concurrently.
When a defendant has been convicted of a misdemeanor, except criminal neglect of family, the court may suspend the imposition or the execution of the whole or any part of the sentence imposed and place the defendant on unsupervised probation upon such conditions as the court may fix, where suspension is not prohibited under the law. Such suspension of sentence and probation shall be for a period of two years or such shorter period as the court may specify.
In State v. Jones, supra, this Court states, “If either the execution or the imposition of the sentence is to be deferred, it ... is the obligation of the court to impose probation, and to set its term[s] and conditions. See generally [La.]
The trial court also sentenced the defendant for direct contempt of court.
When there was a discrepancy between the transcript and the minute entry, the transcript prevails. State v. Lynch, 441 So.2d 732 (La.1983). However, the “sentence” stated by the trial judge is not sufficiently definite to adequately inform the defendant (or this Court) of the sanctions imposed. In the recent case, State v. Jones, supra, this Court addressed a similar issue, stating
The purpose of requiring the defendant‘s presence at sentencing and of pronouncing the sentence in open court is to insure the defendant is apprised of the punishment imposed, [sic] See
C.Cr.P. art[s]. 835 ,871 and comments thereunder. Accordingly, the failure of the trial judge to fully articulate the sentence and the failure of [the] clerk to accurately reflect what was stated operate[d] to the detriment of the accused.
The “sentence” stated by the trial judge is not in conformity with statutory authority, and this lack of compliance has operated to the detriment of the accused, as he is presently incarcerated without adequate written evidence of his sentence.
For the foregoing reasons, the defendant‘s plea and sentences are vacated, and the matter is remanded for further proceedings consistent with this opinion.
PLEA AND SENTENCES VACATED, REMANDED FOR FURTHER PROCEEDINGS.