State v. JonesState v. Jones
Defendant Glynn J. Jones entered a guilty pleа on July 29, 1975 to a charge of simple burglary of an automobile.
Thereafter, on August 7, 1975, the District Attorney filed a multiple offender bill based upon the authority of Section 529.1 of Title 15 of the Revised Statutes. Therein it was аlleged that defendant had previously pled guilty on November 26, 1969 to a charge of attempted armed robbery, a felony under the law of Louisiana, at which time he was sentenced to serve two years at hard labor.
Accordingly, on September 5, 1975 defendant was tried and found guilty as a second offender, his previous sеntence of July 29, 1975, was vacated, and he was sentenced to serve three years at hard labor; further, the execution of the sentence was suspended, and he was placed on active probation for five years, a special condition of probation required that defendant be imprisoned for one year without hard labor, with credit for time served since June 7, 1975.
The State then applied to this Court on September 10, 1975 for certiorari, complaining
The language of Section 529.1 of Title 15 is quite explicit. Insofar as it is pertinent here, it provides:
“A. Any person who, after having been convicted within this state of a felony, or who, after having been convicted under the laws of any other state or of the United States, or any forеign government or country of a crime which, if committed in this state would be a felony, thereafter commits any subsequent felony within this state upon conviction of said felony shall be punished as follows:
“(1) If the second felony is such that upon a first conviction the offender would be punishable by imprisonment for any term less than his natural life, then the sentence to imprisonment shall be for a determinate term not less than one-third the longest term and not more than twice the longest term prescribed for a first conviction . . .”
The penalty for simple burglary, the July 29, 1975 conviction and the second felony referred to above, is imprisonment at hard labor for not more than nine years.
Thus, when at the trial of the multiple offender charge the trial judge vacated the sentence for the July 29, 1975 conviction, the sentence to imprisonment on the multiple offender charge was required to be “for a determinate term not less than one-third the longest term and not more than twice the longest term prescribed for a first conviction.”
However, nowhere in the multiple offender statute is language found authorizing the suspension of any sentences prescribed there. If the trial judge‘s suspension of defendant‘s multiple offender sentence is to be upheld, other authority must be found for the action. In the response of the trial judge, and in the defense brief, reliance is placed upon Article 893 of the Code of Criminal Procedure, which is quoted in full:
“When it appears that the best interest of the public and of the defendant will be served, the court, after conviction of a felony for which the punishment is with or withоut hard labor or a felony which is a violation of the Controlled Dangerous Substances Law of Louisiana, noncapital felony, may suspend for the first conviction only the imposition or execution of any sentence, where suspension is allowed under the law and in either case place the defendant on probation under the supervision of the division of probation and parole supervision. The period of probation shall be specified and shall not be less thаn one year nor more than five years. The suspended sentence shall be regarded as a sentence for the purpose of
granting or denying a new trial or appeal. “The court under the same conditions and by the same procedure as provided for above may susрend the execution or imposition of the sentence of a multiple offender and place the defendant on probation if he intends to participate in the program authorized by the Federal Narcotics Rehabilitation Act or other federal or state rehabilitation programs, however if for any reason the defendant is rejected by said program he shall be returned to the custody of the court which imposed the sentence and the sentencing judge shall оrder the sentence be executed. Rejection by said program shall be a violation of the defendant‘s suspended sentence.
“If the sentence consists of both a fine and imprisonment, the court may impose the fine and suspend the sentence or place the defendant on probation as to the imprisonment.
“The court shall not suspend a felony sentence after the defendant has begun to serve the sentence.
“When the imposition of sentence has been suspended by the court, as authorized by this article, and the court finds at the conclusion of the probationary period that the probation of the defendant has been satisfactory, the court may set the conviction aside and dismiss the prosecution and the dismissal of the prosecution shall have the same effect as acquittal, except that said conviction may be considered as a first offense and provide the basis for subsequent prosecution of the party as a multiple offender, and further shall be considered as a first offense for purposes of any other law or laws relating to cumulation of offenses.”
The first impression gained from a reading of this Article as it applies to the instant case is that after a conviction of a noncapital felony a judge may suspend “for the first conviction only” the imposition or execution of the sentence “where suspension is allowed under the law.”
Insofar as the first paragraph of the Article is concerned, the quoted phrases do not support the suspension of the enhanced penalty. Suspension is allowed “for the first conviction only,” which means that this second offense is not susceptible of suspension. And, then, suspension is not permitted except “where suspension is allowed under the law.” As already noted, Section 529.1, the multiple offender statute, under which defendant must be sentenced since he has been convicted as a second offender, does not allow suspension of sentences.
The trial judge and the defense contend, however, that authority for the suspension may be found in the second paragraph of Article 893, which permits suspension of a multiple offender‘s sentence and allows him to be placed on probation “if he intends to participate in the program authorized by the Federal Narcotics Rehabilitation Act or other federal or state rehabilitation programs.” (emphasis added.)
The argument in this regard is that the Louisiana Department of Probation and Parole is a Stаte rehabilitation program within the contemplation of Article 893 and, therefore, when a convicted second offender is placed on active probation he participates “in the program authorized by the Federal Narcotics Rehabilitation Act or other federal or state rehabilitation programs.”
This argument does not take into consideration the meaning of the Article when read as a whole. When the article provides for suspension “for the first сonviction only” a general limitation is placed upon the authority of courts to suspend sentences. If the second paragraph was
The Court is aware of the programs for rehabilitation referred to in the defеnse brief and the view expressed concerning those programs. Without further comment on these arguments, it should be pointed out that the Louisiana Legislature has not, in this instance, declared that suspension is permitted for enhanced penаlties, except where narcotic rehabilitation is involved. Furthermore, the total absence of authorization for suspension of sentences in the multiple offender statute militates against the defense contention.
Therefore, the Court is of the opinion that the authority to suspend a felony conviction is limited to the first conviction only, except when a defendant is placed on probation to participate in a narcotic rehabilitation program.
In his per curiam the trial judge submits that notwithstanding that Article 893 does not authorize suspension of sentences imposed for second offenses, except when the defendant is placed on probation for participation in a program оf narcotic rehabilitation, the Article is unconstitutional in that it fails to set forth any type of proceeding to determine whether the defendant is, in fact, a second or multiple offender; nor does it set forth any time limitation or prescriptivе period for such a determination. Of course, if the Court finds the Article to be unconstitutional the defendant‘s position is not improved, for in that case there would be no authority whatsoever for suspension of a multiple offense sentence. In that situation, no authority would exist for the suspension the trial judge sought to grant. Under the circumstances, the Article‘s constitutionality should not be questioned when those who urge its unconstitutionality are not in a proper posture to do so, and when anоther ground has been found to dispose of the only contention raised by the application for writs.
For the reasons assigned, the judgment of the trial court, insofar as it suspends the sentence imposed, is reversed and set aside, and the case is remanded to the trial court with instructions to correct the sentence in a manner not inconsistent with the views expressed.
DIXON, J., dissents.