State v. Hardan, 519 So. 2d 224

State v. Hardan

519 So. 2d 224 | La. Ct. App. | 1988

WICKER, Judge.

Kevin Hardan appeals the sentence imposed as a result of his guilty plea to a charge of simple burglary of an inhabited dwelling. L.S.A.-R.S. 14:62.2. We vacate the illegal sentence and remand the case for resentencing.

*225Hardan and a companion broke into a residence. The householder got his gun and held them until the police arrived. He was originally charged with aggravated burglary (L.S.A.-R.S. 14:60); and he pled guilty to a reduced charge of simple burglary and was sentenced to twelve years’ imprisonment, none of it without benefit of parole, probation or suspension of sentence as required by L.S.A.-R.S. 14:62.2. This court found the sentence to be illegally lenient and remanded for resentencing. State v. Hardan, 501 So.2d 848 (La.App. 5th Cir.1987). The trial judge then resen-tenced Hardan but applied the “without benefit of parole, probation or suspension of sentence” provision to the entire twelve year sentence.

Hardan complains that (1) his sentence is illegal in that all twelve years of it are without benefit of parole, probation, or suspension; and (2) his sentence is excessive in light of his youth and record.

The sentencing provision of L.S.A.-R.S. 14:62.2 provides that “Whoever commits the crime of simple burglary of an inhabited dwelling shall be imprisoned at hard labor for not less than one year, without benefit of parole, probation or suspension of sentence, nor more than twelve years.” The ineligibility for parole, probation or suspension can be applied only to the minimum one-year term. State v. Conley, 411 So.2d 448 (La.1982); State v. Boowell, 406 So.2d 213 (La.1981); State v. Sprinkle, 439 So.2d 1230 (La.App. 5th Cir.1983). The sentence imposed upon Hardan is illegally harsh, as the state concedes, and must be vacated. We remand for resentencing to this extent.

We pretermit any discussion of Hardan’s second assignment of error, since we have decreed that the illegal sentence should be vacated and the case remanded for resen-tencing.

SENTENCE VACATED, CASE REMANDED FOR RESENTENCING.