State v. May
349 So. 2d 332
La.
1977
Check Treatment

Lead Opinion

In re: Jimmy Earl May, applying for writs of certiorari, prohibition, mandamus and for stay order.

*333Writ granted. Evidentiary hearing is ordered to determine whether or not defendant waived counsel at the time of his first conviction in view of the discrepancy in minutes of trial court contained in the record.





Dissenting Opinion

TATE, J.

I respectfully dissent. The only proof of the first D.W.I. conviction is a minute entry which does not affirmatively show that the accused was represented by (or waived) counsel. Therefore he could not constitutionally be subject to enhanced punishment as a second offender, Loper v. Beto, 405 U.S. 473,92 S.Ct. 1014, 31 L.Ed.2d 374 (1972) and City of Monroe v. Coleman, 304 So.2d 332 (La.1974). The applicant is entitled to have vacated his conviction, which (on the face of the trial record) unconstitutionally imposed and enhanced his punishment as a second offender.