State v. FletcherState v. Fletcher
Defendant Allen Fletcher appeals his sentence as a third felony offender. On appeal he argues that he should be resentenced as a first felony offender. This court finds that defendant was improperly adjudicated as a third felony offender. We set aside that adjudication and hereby adjudicate defendant as a second felony offender. We remand to the trial court for resentencing.
PROCEDURAL HISTORY
This is defendant‘s third appeal to this court regarding alleged sentencing errors.
On June 3, 1994, the St. James Parish District Attorney filed a Bill of Information charging defendant Allen Fletcher with second degree battery, a violation of
On June 30, 1997, in an unpublished opinion in appeal 97-KA-40, this court set aside the defendant‘s life sentence and remanded for resentencing, noting that the trial judge retroactively applied the 1996 amended version of
On September 9, 1998, defendant was resentenced to ten years in the Department of Corrections, and defendant appealed his sentence again. (99-KA-56). On June 23, 1999, in a per curiam opinion, this court set aside defendant‘s ten-year sentence and remanded for resentencing, noting only that defendant was improperly sentenced as a fourth felony offender.2,3
ASSIGNMENT OF ERROR NUMBER ONE
Defendant argues that the trial court improperly found him to be a multiple felony offender pursuant to
The cleansing period to be applied is the one in effect at the time defendant committed the instant offense.4 At the time of the commission of the instant offense, May 8, 1994,
In State v. Humphrey, 96-838 (La.App. 5 Cir. 4/29/97), 694 So.2d 1082, 1088, writ denied, 97-1461 (La.11/7/97), 703 So.2d 35, this court set forth the following law regarding cleansing periods:
The State bears the burden of showing that the predicate convictions fall within the cleansing period. The imposed sentence does not govern the determination of the expiration of the cleansing period. Rather, the actual discharge from supervision by the Department of Corrections controls. Thus, the commencement of the cleansing period is from the date of discharge from state supervision, because the discharge can take place earlier than the theoretical date on which the sentence would have terminated due to pardon, commutation or good time credit, or it could take place later because of parole revocation. However, if less than the cleansing period has elapsed between defendant‘s conviction on a predicate felony and his commission of a subsequent predicate felony, the State need not prove the date of discharge on the earlier
sentence in the habitual offender proceedings. State v. Humphrey, 694 So.2d at 1088 (citations omitted).
In the instant case, the following crimes were listed in the multiple offender Bill of Information:
Case Nos. Crimes Dates 66-F 14:62; simple burglary date of commission 10/10/79 date of conviction 2/7/80 date of discharge 7/17/80 313-F 14:62; simple burglary date of commission 6/5/82 date of conviction 5/11/83 date of discharge 6/3/85 1003-F 14:95.1; felon in possession date of commission 12/16/87 of a firearm date of conviction 6/16/88 date of discharge 5/18/93 23346-F 14:34.1; second degree date of commission 5/8/94 battery date of conviction 10/6/95
This court found that defendant was improperly sentenced as a fourth felony offender, and remanded the case for resentencing. The trial court then found defendant to be a third felony offender and resentenced defendant to ten years in the Department of Corrections.6 Defendant appeals the finding that defendant was a third felony offender. A review of the record reveals that the trial court erred by finding defendant to be a third felony offender when, in fact, he should have been adjudicated a second felony offender.
Defendant‘s June 16, 1988 conviction for being a felon in possession of a firearm and his May 11, 1983 conviction for simple burglary cannot both be used for purposes of enhancing the sentence for a subsequent conviction. See State v. Bailey, 97-493 (La.App. 5 Cir.11/12/97), 703 So.2d 1325, 1331 (during an error patent review, this court held that “[i]f a felon in possession of a firearm conviction is used to enhance a subsequent conviction, the underlying felony used as an element of the firearm conviction may not be used in the multiple bill, as this constitutes double enhancement“); State v. Moten, 619 So.2d 683, 685 (La. App. 4 Cir.1993) (“[a] felon in possession of a firearm conviction may be used to enhance the penalty for a subsequent conviction only if the underlying felony used as an element of the firearm conviction is not also used in the same multiple bill“); State v. Hymes, 513 So.2d 371, 373 (La.App. 4 Cir.1987) (“a 14:95.1 conviction may be used to enhance the penalty for a subsequent conviction only if the underlying felony used as an element of the firearm conviction is not also used in the same multiple bill“). Therefore, this court was correct in finding that defendant was improperly sentenced as a fourth felony offender.
However, on remand, the trial court erroneously used the 1983 conviction for simple burglary to find that each of the four convictions fell within the five-year cleansing period. Because the 1983 conviction for simple burglary was used as an element of the firearm conviction and the firearm conviction was used for enhancement purposes, the 1983 conviction for
Defendant was first convicted of simple burglary in 1980. Because more than five years passed between that conviction (or date of discharge) and the 1987 commission of the crime of being a felon in possession of a firearm, the 1980 simple burglary conviction cannot be used as a predicate offense. However, a review of the record reveals that the firearm conviction can be used to find that defendant was a second felony offender. Defendant‘s firearm conviction was in 1988, and he committed the second degree battery in 1994. Because more than five years have elapsed, this court can look to the date of discharge, May 18, 1993. Because less than five years elapsed between the date of discharge and the date of commission of the second degree battery, May 8, 1994, the firearm conviction can be used to find defendant to be a second felony offender.
Based on the foregoing, we are required to set aside defendant‘s adjudication as third offender. We hereby enter judgment adjudicating the defendant a second felony offender, and remand to the trial court for resentencing. See State v. Dickerson, 33,474 (La.App. 2 Cir. 5/10/00), 760 So.2d 573.
SUPPLEMENTAL ASSIGNMENT OF ERROR NUMBER ONE (PRO SE)
Defendant argues that a new Bill of Information must be filed before imposing sentence, citing State v. Bailey, supra. We find, however, that under State v. Dickerson, supra, this court may set aside the incorrect adjudication, enter judgment with the correct adjudication, and remand for resentencing, without the necessity of the State filing a new Bill of Information.
ASSIGNMENT OF ERROR NUMBER TWO
The record was reviewed for errors patent, according to
This court notes that upon imposing the defendant‘s enhanced sentence, the trial judge did not advise the defendant of the prescriptive period for post-conviction relief as mandated by
Accordingly, we set aside defendant‘s adjudication as a third felony offender, enter judgment adjudicating the defendant a second felony offender, and remand to the trial court for resentencing.
THIRD FELONY OFFENDER ADJUDICATION SET ASIDE; ADJUDICATION AS A SECOND OFFENDER