State v. JenkinsState v. Jenkins
The defendant, Charles E. Jenkins, was charged with two counts of possession of marijuana, a violation of
On appeal, the defendant makes the following assignments of error:
(1) The trial court erred in setting aside the original thirty day jail sentences and imposing sentences of five months on each count.
(2) The trial court erred in considering a prior conviction of possession of marijuana in determining the sentence to be imposed.2
CORRECTION OF THE ILLEGAL SENTENCES
The defendant was charged by bills of information with two counts of possession of marijuana, a violation of
“An illegal sentence may be corrected at any time by the court that imposed the sentence.
A sentence may be reviewed as to its legality on the application of the defendant or of the state:
(1) In an appealable case by appeal; or
(2) In an unappealable case by writs of certiorari and prohibition.
Nothing in this article shall be construed to deprive any defendant of his right, in a proper case, to the writ of habeas corpus.”
The trial court correctly set aside the original illegal sentences.
The defendant contends that the trial court erred in setting aside both the jail terms and the fines. He asserts that in correcting an illegal sentence, the trial judge is only authorized to correct that portion of the sentence which exceeds the statutory maximum. He urges that the trial court was authorized to reduce the fine, but that the two thirty-day jail terms, being within the statutory limit, could not be disturbed. This contention is without merit.
A sentence is “... the penalty imposed by the court on a defendant upon a plea of guilty, upon a verdict of guilty, or upon a judgment of guilt.”
“In any criminal case it is the mandatory duty of the district judge upon conviction of a defendant to impose a sentence authorized or directed by law, and, if he does not impose a sentence authorized or
directed by law, the sentence is illegal, and the case is in the same condition as if no sentence at all has been imposed, and it must be remanded to the district court so that the judge may impose a legal sentence.”
The foregoing language makes clear that when a sentence is found to be illegal, the entire sentence is vacated. Thus, the trial court was correct in vacating both the jail terms and the fines imposed on original sentencing.
Although the trial court was clearly authorized to set aside both the fines and the jail sentences and to reimpose legal sentences, his discretion in resentencing the defendant is not unbridled. In North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969), the Supreme Court considered the constitutional limits on the scope of the authority of a trial court to impose a heavier sentence upon a criminal defendant when an original sentence is set aside.
In Pearce, the court concluded that neither the double jeopardy provision nor the equal protection clause prohibits the trial court from imposing a more severe sentence upon reconviction. However, the court did find that the due process clause protects a criminal defendant from receiving a harsher sentence upon reconviction as a penalty for exercising his right to attack the original conviction. The court stated:
“Due process of law, then, requires that vindictiveness against a defendant for having successfully attacked his first conviction must play no part in the sentence he receives after a new trial. And since the fear of such vindictiveness may unconstitutionally deter a defendant‘s exercise of the right to appeal or collaterally attack his first conviction, due process also requires that a defendant be freed of apprehension of such a retaliatory motivation on the part of the sentencing judge.20
In order to assure the absence of such a motivation, we have concluded that whenever a judge imposes a more severe sentence upon a defendant after a new trial, the reasons for his doing so must affirmatively appear. Those reasons must be based upon objective information concerning identifiable conduct on the part of the defendant occurring after the time of the original sentencing proceeding. And the factual data upon which the increased sentence is based must be made part of the record, so that the constitutional legitimacy of the increased sentence may be fully reviewed on appeal.” (footnote omitted)
See also, State v. Rutledge, 259 La. 543, 250 So.2d 734 (1971).
In our view, the foregoing principles have equal application to situations wherein only the original sentence, and not the underlying conviction, is successfully attacked. A defendant clearly has the right to have an illegal sentence set aside. A defendant seeking to exercise his right should not be saddled with apprehension that the new sentence, although within statutory limits, will be more severe.
Having determined that the principles of North Carolina v. Pearce, supra, are applicable to resentencing after an illegal sentence is set aside, we must next determine whether the sentence imposed by the trial judge in the instant case is a harsher penalty than that originally imposed. The original sentences consisted of a thirty day jail term and a $2,000.00 fine on each count, the jail terms to be served consecutively. Thus, the total penalty was sixty days in jail and $4,000.00 in fines. In resentencing the defendant, the trial judge reduced the fine to the statutory maximum of $500.00 on each count, but increased the jail term to five months on each count, such terms to run consecutively. The new sentence therefore represented a reduction in fines from $4,000.00 to $1,000.00 and an increase in jail terms from sixty days to ten months.
We conclude that the penalty imposed by the trial court upon resentencing is more severe than that originally imposed. The reduction in fines to a maximum of $500.00 on each count was mandated by statute. It is nigh impossible to determine with any
In light of our decision to remand this matter for resentencing, it is unnecessary to reach the issue raised by the defendant‘s second assignment of error.
For the above and foregoing reasons, the writ heretofore granted is made peremptory, and the sentences imposed are set aside. This matter is remanded to the trial court for resentencing in accordance with the views expressed herein.
WRIT GRANTED AND MADE PEREMPTORY.
SENTENCES VACATED AND MATTER REMANDED FOR RESENTENCING.