State v. GuilloryState v. Guillory
The defendant was convicted of resisting arrest in violation of
Police had set up a blockade around a two block area searching for four armed men in a stolen vehicle. The defendant lived within this sealed-off area and she and her brothers attempted to walk past the police, but were told they could not pass because of the danger.
The defendant told the police she had two small children at her house and she was allowed to pass. However, her two brothers were stopped and the defendant returned and shoved one of the police from behind during an argument. She was then placed under arrest along with her brothers.
The charge was presented by affidavit which did not name the officer who was resisted nor his official capacity. After the State called three witnesses the prosecutor requested that he be allowed to amend the affidavit, but this request was objected to by the defendant. The trial judge denied the request to amend but ordered a mistrial, sua sponte. The defendant also objected to the mistrial.
A new affidavit was filed including the officer‘s name and his official capacity. Defendant filed a motion to quash alleging double jeopardy, but this motion was denied and the case proceeded to trial. The defendant was found guilty and presents two assignments of error.
ASSIGNMENT OF ERROR NUMBER ONE
Defendant contends that the trial judge erred in denying the motion to quash the second affidavit based on the double jeopardy provisions of the United States and Louisiana Constitutions. The Louisiana Constitution provision against double jeopardy is implemented by
No person shall be twice put in jeopardy of life or liberty for the same offense except, when on his own motion a new trial has been granted or a judgment has been arrested or where there has been a mistrial legally ordered under the provisions of Article 775 or ordered with the express consent of the defendant.
The State contends the judge was authorized to grant the mistrial sua sponte under
(3) There is a legal defect in the proceedings which would make any judgment entered upon a verdict reversible as a matter of law;
The Official Revision Comment to that article states:
(g) A substantial defect in the indictment would constitute the third listed ground for mistrial, i. e., “a legal defect in the proceedings which would make any judgment entered upon a verdict reversible as a matter of law.” See Article 859(1) Grounds for Arrest of Judgment. Similarly, Art. 487, which states the effects of defective indictments, concludes “* * * After the trial begins a mistrial shall be ordered on the grounds of a defect of substance.”
Apparently the trial court felt a mistrial was appropriate under earlier jurisprudence which required that a defendant be informed of essential facts constituting the offense. State v. Spina, 261 La. 397, 259 So.2d 891 (1972). Also, this court had held that a charge brought under
However, the requirements of Moore and Dozier are no longer necessary. Where the indictment has failed to sufficiently inform the defendant of the specific conduct alleged to have produced a violation, the proper remedy was not a motion to quash,
When the State attempted to amend the affidavit under the mistaken belief it was necessary, defense counsel opposed the amendment and cited Moore and Dozier, supra. The record shows this defendant was personally acquainted with the officer she is alleged to have resisted.
It therefore follows that the erroneous position urged by the defendant in opposition to the proposed amended affidavit amounted to tacit consent and reason and cause for the mistrial. We find that the defendant‘s strategy left no alternative but for the trial judge to declare a mistrial. See State v. Bodley, 394 So.2d 584 (La. 1981). Thus,
This assignment is without merit.
ASSIGNMENT OF ERROR NUMBER TWO
Defendant was sentenced to “ten (10) days in jail, plus $250.00 fine or 60 days in jail, plus 75 days in jail with the 75 day sentence suspended and the defendant placed under unsupervised probation for a period of two years“.
Defendant urges that the terms of the sentence are illegal and that the trial judge failed to follow the guidelines in
The defendant argues that many mitigating factors outlined in
The record reflects that the trial judge stated he considered the case according to the provisions of Article 894.1, but the only reference we find in the record to that consideration was specific mention of the seriousness of the crime. Unfortunately, there is no discussion of the various mitigating circumstances argued by the defendant. And we agree that the trial judge failed to adequately comply with the mandatory requirements of
As noted above, defendant‘s sentence mandates jail, a fine or jail in lieu of the fine, a suspended jail term plus unsupervised probation.
The penal provision of
Whoever commits the crime of resisting an officer shall be fined not more than five hundred dollars or be imprisoned for not more than six months, or both.
Thus, the aggregate of the sentence is within the statutory provisions; however, in a misdemeanor case jail time cannot be a condition of probation,
We therefore vacate defendant‘s sentence and remand to the trial court for re-sentencing,
SENTENCE VACATED AND REMANDED.
MARCUS, J., concurs in part and dissents in part and assigns reasons.
LEMMON, J., dissents from setting aside sentence and assigns reasons.
MARCUS, Justice (concurring in part and dissenting in part).
I concur in defendant‘s conviction but dissent from the finding that defendant‘s sentence is illegal. Accordingly, I respectfully concur in part and dissent in part.
LEMMON, Justice, dissents from setting aside the sentence and assigns reasons.
I concur in affirming the conviction, but dissent from that part of the judgment which sets aside the sentence as illegal.
The interpretation by the majority in the present case forces a trial judge to choose between all probation or all jail, with no apparent rational basis for this limitation on his sentencing discretion.
ON REHEARING
LEMMON, Justice.
We granted the state‘s application for rehearing in order to reconsider that part of our decision on original hearing in which we set aside as illegal the sentence imposed by the trial judge.
Defendant was sentenced to “ten (10) days in jail, plus $250.00 fine or 60 days in jail, plus 75 days in jail with the 75 day sentence suspended and the defendant placed under unsupervised probation for a period of two years“.
On original hearing we held that defendant‘s sentence for a misdemeanor was illegal in two respects: (1) jail time was imposed as a condition of probation and (2) the period of probation exceeded one year. We also concluded that the trial judge had failed to comply with the guidelines of
The decision on original hearing was based on State v. Upton, 382 So.2d 1388 (La.1980). In the Upton case this court in a per curiam opinion set aside a sentence on several grounds and remanded for resentencing, noting that
While the sentence in the present case might reasonably be construed as imposing a ten-day jail term as a condition of probation, the trial judge did not mention conditions of probation, and the sentence is more appropriately viewed as one in which the execution of part of the sentence is suspended under the authority of
We therefore reverse our position on original hearing that the sentence illegally imposed confinement as a condition of probation.
As to the compliance with
Accordingly, the conviction is affirmed, but the sentence is set aside as illegal. The matter is remanded to the trial court for resentencing in accordance with this opinion.
CALOGERO, J., concurs and assigns reasons.
DENNIS, J., concurs for the reasons assigned by CALOGERO, J.
WATSON, J., concurs in the result.
LEMMON, Justice, assigning additional concurring reasons.
Even if the sentence in the present case were construed as one imposing a ten-day jail term as a condition of probation, there is no statutory prohibition against such a sentence.
A 1973 Opinion of the Attorney General expressed the view that trial courts were not authorized to impose confinement as a condition of probation under
There is no compelling reason to construe the express authorization in felony cases as an implied denial of this sentencing alternative in misdemeanor cases.3 Article 895‘s express one-year limitation in felony cases appears to be designed to prevent trial judges from imposing longer jail terms in felony cases as probationary conditions rather than to prohibit trial judges from imposing any jail term as a probationary condition in misdemeanor cases.4 Although misdemeanors have varying terms, relatively few exceed six months.5 Obviously, the Legislature did not intend to authorize confinement as a probationary condition which would exceed the maximum term of confinement set forth in the penalty provision of the statute defining the offense. Thus, it is understandable that the one-year period of
This interpretation of Article 895 also accords with the concept that a trial judge should be afforded wide discretion in performing his sentencing function. See American Bar Association Standards Relating to Sentencing Alternatives and Procedures, §§ 2.1(b), 2.4.
I therefore conclude that the jail term imposed at the time of initial sentence in this misdemeanor case was not illegal, even if intended as a condition of probation, because of
I agree with the majority that the sentence is illegal because the period of probation exceeded one year, the trial judge did not comply with
However, I see no reason to question the correctness of State v. Upton, 382 So.2d 1388 (La.1980), a Per Curiam opinion subscribed to by all seven members of the Court only a year ago. In my view, Upton was correctly decided and there has been no legislative change which would prompt a different result now.
Upton, rendered after the above amendment to
For the foregoing reasons, I concur.
Notes
“When the court suspends the imposition or execution of sentence and places a defendant on probation, it shall require the defendant to refrain from criminal conduct and it may impose any specific condition reasonably related to his rehabilitation, including any of the following:
“That the defendant shall:
“(1) Make a full and truthful report at the end of each month;
“(2) Meet his specified family responsibilities;
“(3) Report to his probation officer as directed;
“(4) Permit the probation officer to visit him at his home or elsewhere;
“(5) Devote himself to an approved employment or occupation;
“(6) Refrain from owning or possessing firearms or other dangerous weapons;
“(7) Make reasonable reparation or restitution to the aggrieved party for damage or loss caused by his offense in an amount to be determined by the court;
“(8) Refrain from frequenting unlawful or disreputable places or consorting with disreputable persons; or
“(9) Remain within the jurisdiction of the court and get the permission of the probation officer before any change in his address or his employment.”