State v. Marcel, No. 94-K-0765

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No. 94-K-0765 | La. Ct. App. | Aug 17, 1994

JjSCHOTT, Chief Judge.

On the application of the state, we grant certiorari in order to consider the validity of a judgment of the trial court denying the state’s motion to correct an illegal sentence. We reverse the judgment of the trial court, vacate defendant’s sentence, and remand for resentencing.

*260On July 16,1993, defendant plead guilty to possession of marijuana, a violation of R.S. 40:966. He was on probation when he was arrested and charged with the instant offense relative to possession of cocaine, a violation of R.S. 40:967(C). On March 30, 1994, the trial court accepted defendant’s plea of guilty under R.S. 40:983, suspended his sentence, and placed defendant on three years active probation. The State filed a motion to correct an illegal sentence and/or to reconsider the sentence on the ground that the defendant was ineligible for a suspended sentence under R.S. 40:983 because of his previous conviction of possession of marijuana. The trial court denied the motion.

R.S. 40:983(A) provides in pertinent part:

A. Whenever any person who has not previously been convicted of any offense under this Part pleads guilty to or is convicted of having violated R.S. 40:976(0 of this Part, and when it appears that the best interests of the public and of the defendant will be served, the court may, without entering a judgment of guilt and Rwith the consent of such person, defer, further proceedings and place him on probation. ...

Part X of Title 40 of the Revised Statutes is the Uniform Controlled Dangerous Substances Law. It “was amended and re-enacted by Act 1972, No. 634, section 1 as part X of Chapter 4 of Title 40 to contain R.S. 40:961 through 40:995.” See historical notes to Title 40, Part X. Thus, defendant’s prior conviction under R.S. 40:966 for possession of marijuana, even though a misdemeanor, nonetheless falls under Part X of Title 40. Accordingly, the trial court erred in accepting defendant’s plea under R.S. 40:983.

Defendant’s sentence is vacated and the case remanded for resentencing.

VACATED AND REMANDED.