State v. MonroeState v. Monroe
Defendant, Sean I. Monroe, appeals his conviction for armed robbery and the subsequent multiple offender conviction and sentence. We affirm defendant‘s conviction, but remand the matter for re-sentencing and corrections of errors patent.
STATEMENT OF THE CASE
On February 18, 1999, the Jefferson Parish District Attorney filed a bill of information charging defendant, Sean I. Monroe, with the armed robbery of Ms. Shakyra Murphy and Ms. Andrea Duhe, a
On September 22, 1999, the Jefferson Parish District Attorney amended the bill of information and split the charge into 2 counts: count 1, the armed robbery of Shakyra Murphy; and count 2, the armed robbery of Ms. Andrea Duhe, both violations of
Defendant filed an answer to the multiple offender bill of information on December 8, 1999. On February 10, 2000, defendant was found to be a third felony offender and sentenced to life imprisonment without benefit of parole, probation or suspension of sentence, with that sentence to run consecutively with the eight-year sentence on count 1. Although the minute entry indicates that the original sentence on count 2 was vacated before defendant was sentenced under the multiple bill statute, the transcript indicates that it was not. Defendant filed a motion to reconsider sentence which was denied on March 10, 2000.
FACTS
The state introduced evidence at the motion to suppress hearing and at trial to show that on December 8, 1998, at approximately 10:00 a.m., defendant robbed Andrea Duhe and Shakyra Murphy at the Easy Money Store in Harahan, Louisiana while armed with a gun. The defense introduced evidence to show that defendant did not commit this crime, that this was a case of mistaken identity. The following testimony was elicited at the hearing on the motion to suppress and at trial.
Andrea Duhe testified for the state that on December 8, 1998, at approximately 10:00 a.m., she was working at the Easy Money Store in Harahan, Louisiana. As she was sitting at her desk near the window, she saw defendant walk past the window with a navy blue knit cap rolled on his head. The cap was not covering his face. When he entered the door, he stopped, pulled down the mask over his face, pulled out a gun from underneath his shirt, pointed it at her and told her to get off the phone. Duhe hung up the phone, and defendant pointed the gun at Shakyra Murphy and told her to get off the phone. Murphy hung up the phone, and he told
Detective Joe Almerico of the Harahan Police Department testified for the state that he received a call at about 10:50 a.m. regarding a robbery in progress at the Easy Money Store. Almerico learned that a red or maroon Beretta vehicle was used in the robbery. When he got to the scene, he learned from the reporting officer and the victims that Sean Monroe had committed the robbery, and that Monroe had come into the store the day before and applied for a loan, which is how one of the victims recognized him. Almerico went to the store and spoke to Murphy, who prоduced defendant‘s loan application which contained addresses of defendant‘s relatives and a copy of defendant‘s driver‘s license. He ran defendant‘s name through the computer system. The search showed that a red or maroon Beretta was registered to defendant.
The officers tried to locate Monroe. There were several addresses listed on his application, and the officers went to each location numerous times. They couldn‘t locate Monroe or his vehicle. Almerico called Monroe‘s cell phone number, and he answered. Almerico said defendant was cooperative and wanted to meet with the officers about the situation. Defendant told them he was at his apartment, but when the detectives got there, defendant was not there. They called Monroe back on his cell phone, but there was no answer. A couple of days later, they saw Monroe‘s vehicle, a two-door maroon Beretta, at the apartment complex. They ran the license plate through the computer to confirm it was Monroe‘s vehicle, which it was.
They went back to the apartment complex and took statements from Temika
Sharon Prestenbach, a delivery driver for Sclafani‘s Chicken and Ribs, testified for the state that on December 8, 1998, at approximately 10:50 a.m., she was about to make a delivery when a maroon two-door Beretta pulled up next to her, and she waited for it to pass. Prestenbach thought the car looked suspicious because it was moving slowly, and because the driver and the passenger watched her to see what she was going to do. She noticed the car and the actions of the occupants because she carried a lot of money and feared that she might be a target. She was gone on her delivery for about five to ten minutes. When she returned there was no vehicle there. Prestenbach identified state‘s exhibit numbers 3, 4, 5, and 6, photographs of defendant‘s car, as the car that was outside the restaurant on December 8, 1998.
Mary Dixon, defendant‘s mother, testified for the defense at trial that at 11:00 a.m. on December 8, 1998, defendant‘s girlfriend, Temika, called her on the telephone, and Dixon could hear her son‘s voice in the background.
Temika Parker, defendant‘s girlfriend, testified that she and Monroe had been running errands on the morning of December 8, 1998. At trial, she stated that she and Monroe registered her daughter at Little Woods Elementary School on December 8, 1998, between 8:00 a.m. and 9:00 a.m., and met with a teacher for about 30 minutes. Parker testified that they went home, and almost immediately received a phone call from Monroe‘s father, who asked Monroe to pick something up at Auto Zone. Parker testified that she had not been aware of what time Monroe had spoken with his father on the phone, but that it must have been between 9:30 and 10:00. She stated that the two ran the errand for Monroe‘s father and returned home. As soon as they returned home, however, Monroe left again. She initially stated that though she wasn‘t sure what timе he left, he had returned within 10 minutes, at about 11:30. At a later point in her testimony, Parker testified that she and Monroe got home about 10:30 a.m. after running errands, that Monroe went out immediately, and that he got back about 12:00 p.m. Finally, Parker stated that she had gone to collect one of her children from school at 3:15 that afternoon.
During the investigation into the crime, when Parker initially gave her statement to the police, she told the officer that she wasn‘t sure what time they returned home from the school. She did state, during the investigation and at trial, that she was unsure of exactly when she and Monroe had done things on the day in question because they had just moved into their apartment and did not yet have a clock.
ASSIGNMENT OF ERROR NUMBER ONE
As his first assignment of error, defendant argues that the trial court erred by
Defendant contends that the trial court improperly denied his motion to suppress the second statement taken on December 21, 1998, by Harahan police officers at the parish prison, after the defendant had already been appointed counsel on December 17, 1998. Defendant claims that the officers did not advise him of his Miranda rights before the statement was taken, that the officers did not ask him if he had an attorney or wanted his attorney present, and that he did not waive his right to counsel. Defendant argues that his right to counsel attached when counsel was appointed on December 17, 1998, and that once the right to сounsel attaches, it cannot be waived, according to State v. Hattaway, 621 So.2d 796 (La.1993). The state responds that defendant initiated the conversation with the officers and, thus, waived his right to counsel; that defendant‘s statement was knowing, intelligent and voluntary; and that the trial judge‘s decision to deny defendant‘s motion to suppress the second statement was correct. The state contends that Hattaway was overruled by State v. Carter, 94-2859 (La.11/27/95), 664 So.2d 367, 374, and that a defendant can make a valid waiver of his right to counsel as long as it is knowing, intelligent and voluntary.
The decision to deny a motion to suppress is afforded great weight, and it will not be set aside unless the preponderance of the evidence clearly favors suppression. State v. Williams, 98-1006 (La. App. 5 Cir. 3/30/99), 735 So.2d 62, 73. In determining whether the ruling on a defendant‘s motion to suppress is correct, an appellate court is not limited to the evidеnce adduced at the hearing on the motion, but may also consider pertinent evidence given at the trial. State v. Bell, 97-1134 (La.App. 5 Cir. 2/25/98), 709 So.2d 921, 923.
The law regarding a defendant‘s right to counsel was discussed in State v. Carter, 94-2859 (La.11/27/95), 664 So.2d 367. In Carter, defendant was arrested for rape and battery and appeared in magistrate court for an initial appearance. At the appearance, the judge appointed a public defender to represent defendant. Two days later, an officer met with defendant in jail, advised him of his rights, and asked him if he wanted to make a statement. Defendant said he did and that he understood his rights. He signed a wavier of rights form which included the right to remain silent and to have an attorney present during questioning, and which notified defendant that any statements he might make could be used against him at trial. Defendant thereafter mаde a statement. He subsequently filed a motion to suppress the statement which was denied.
The Louisiana Supreme Court in Carter held that where a defendant‘s federal and state constitutional right to counsel has attached, but where defendant has not asserted or invoked the right which has attached, he may validly waive his right to counsel during an interrogation, provided the waiver is knowing, intelligent and voluntary. The court in Carter found that defendant had not asserted or invoked his right to counsel because the transcript of the initial appearance did not show that defendant indicated that he wanted to deal with the police only through counsel. The court stated that “something more than mere mute acquiescence in the appointment of counsel was necessary to show that defendant has asserted his right to cоunsel....” Carter, 664 So.2d at 383.
Once the court in Carter concluded that defendant failed to assert his right to counsel, it next considered whether defendant
The court in Carter, after analyzing the law in Patterson v. Illinois, 487 U.S. 285, 108 S.Ct. 2389, 101 L.Ed.2d 261 (1988), found that in the context of the waiver of right to counsel in an interrogation, Miranda warnings given to a defendant prior to his making a statement will suffice to meet the state‘s burden of proving that the statement was given as a result of a knowing and intelligent waiver of the Sixth Amendment and
The Louisiana Supreme Court in Carter overruled, in part, Hattaway. In Hattaway, the court held that once adversarial proceedings began, and counsel had been appointed, the state could not communicate with defendant about any offense related to the proceedings or obtain a valid waiver of his right to counsel for that purpose except through medium of his attorney. Hattaway, 621 So.2d at 808. However, in Carter, the court overruled Hattaway in part, and held that under the Sixth Amendment, a defendant who has appointed counsel but who has not otherwise asserted or invoked his right to counsel can make a waiver of his right to counsel in the absence of his attorney if the waiver is voluntary, knowing, and intelligent. Carter, 664 So.2d at 370.
In the instant matter, a review of defendant‘s arguments and the state‘s responses reveals the following issues: (1) whether defendant‘s right to counsel attached prior to the second statement; (2) whether defendant asserted or invoked his right to counsel prior to the second statement; and (3) whether defendant made a knowing, intelligent and voluntary waiver of his right to counsel before he gave his second statement.
Defendant gave his first statement on December 10, 1998. Detective Almerico testified that he read defendant his constitutional rights before that statement was taken by Sergeant Kevin Hollingsworth. Defendant indicated that he understood those rights, and he did not ask for an
The first issue is whether defendant‘s right to counsel had attached prior to his second statement on December 21, 1998. According to Hattaway, the right to сounsel attaches no later than a defendant‘s initial court appearance or first judicial hearing and thereafter applies to those pre-trial proceedings which would be considered “critical stages.” The court in Carter stated it was clear that interrogation of the defendant, when occurring after the attachment of the right to counsel, is a “critical stage” of the proceeding entitling defendant to the presence of an attorney. Carter, 664 So.2d at 373. In the instant matter, the record indicates that defendant was appointed counsel at the initial court appearance on December 17, 1998. Because defendant made his initial court appearance, and because the interrogation by Detective Almerico would be considеred a “critical stage” of the proceedings, it appears that defendant‘s right to counsel had attached prior to his second statement.
The next issue is whether defendant invoked or asserted his right to counsel prior to giving the second statement. In the instant case, defendant does not allege in his brief nor does it appear from Detective Almerico‘s testimony or any other testimony that defendant requested counsel during the interrogation itself. Therefore, the issue to be resolved is whether defendant had previously asserted or invoked his right to counsel at the initial appearance. A review of the record reveals no transcript of defendant‘s initial appearance. Further, there is nothing else in the record which would indicate whether or nоt defendant asserted or invoked his right to counsel at his initial appearance or prior to the interrogation. If defendant asserted or invoked his right to counsel prior to the interrogation, then any subsequent waiver of his right to counsel is invalid. On the other hand, if defendant did not assert or invoke his right to counsel prior to the interrogation, the issue becomes whether defendant validly waived his right to counsel. For a waiver to be valid, it must be knowing, intelligent, and voluntary. Carter, 664 So.2d at 385.
Before an inculpatory statement, made during a custodial interrogation, may
In the present case, Detective Almerico testified that he did not promise defendant anything or coerce him in any manner before he gave his second statement. Therefore, it appears that defendant‘s second statement was voluntary. However, Detective Almerico testified that he did not remember whether or not he read defendant his constitutional rights before he took defendant‘s second statement. Further, there are no forms signed by defendant in the record indicating that defendant waived his constitutional rights. Because the record does not show that defendant was advised of his rights before he gave the second statement, we cannot say that defendant made a knowing and intelligent waiver of his right to counsel. Therefore, the second statement should have been suppressed.
A finding that the trial court erred in failing to suppress a confession does not end our inquiry, however, because the erroneous admission of a confession or a statement is a trial error which is subject to harmless error analysis. State v. Koon, 96-1208 (La.5/20/97), 704 So.2d 756. State v. McCorkle, 97-966 (La.App. 5 Cir. 2/25/98), 708 So.2d 1212, 1217, citing Arizona v. Fulminante, 499 U.S. 279, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991).
An error is harmless if it does not affect substantial rights of an accused.
In the instant case, Andrea Duhe positively identified defendant as the individual who robbed her. Duhe had seen the defendant when he came into Easy Money the day before the robbery to fill out a loan application. Shakyra Murphy, defendant‘s friend, told the police officers that the individual who robbed her looked like the defendant from the neck down. Detective Jоe Almerico testified that he received a call about 10:50 a.m. regarding a robbery in progress at the Easy Money store. He learned that a maroon two-door Beretta was used in the robbery. A search showed the defendant owned a maroon two-door Beretta. Sharon Prestenbach, delivery driver for Sclafani‘s, identified a photograph of defendant‘s vehicle as the vehicle she saw next to Easy Money at about 10:50 a.m. Further, defendant did not admit to committing the robbery in his second statement.
We cannot ignore the fact that defendant claimed in his second statement that his girlfriend, Temika Parker, had lied to protect him, and must acknowledge that this may have hurt his defense since Parker was used as an alibi witness at trial. However, there can‘t be too much doubt that Parkеr‘s credibility was damaged by her own testimony during the trial. For while she claimed to have been uncertain of the time throughout the morning in question, and contradicted herself repeatedly, she was nevertheless certain that the activities had taken place during the period in which the crime was committed. And though she testified that her confusion
And finally, we note that Monroe did present the testimony of one other alibi witness—his mom—who testified that she had been able to hear his voice in the bаckground while she spoke with Parker on the telephone close to the time during which the crime occurred.
Given the above, if it was error to have admitted Monroe‘s second confession, the error was harmless.
ASSIGNMENT OF ERROR NUMBER TWO
As defendant‘s second assignment of error, he argues that the state did not prove beyond a reasonable doubt that he had been convicted of the previous felonies necessary to support a conviction as a multiple offender and further, that the court did not vacate the original sentence prior to the imposition of the multiple bill sentence.
Defendant argues that the state failed to prove that he had been convicted of the previous felonies necessary to support his enhanced sentencing as a multiple offender. He contends that Lt. Adams, the state‘s fingerprint expert, was unable to make an identification between the fingerprints relating to one of the predicate felonies and those she had just taken from defendant in court. Defendant also argues that the Boykin form associated with that predicate felony had a different case number on it, and that the state did not furnish a verbatim transcript of the plea as required by State v. Shelton, 621 So.2d 769 (La.1993). The state responds that it proved defendant was the same person who had been convicted of the two previous felonies listed in the multiple offender bill of information, and that the guilty pleas for the prior felony convictions were constitutional.
In State v. Hollins, 99-278 (La.App. 5 Cir. 8/31/99), 742 So.2d 671, 684-685, this court set forth the pertinent law regarding the method to be used to prove that a defendant is a habitual offender:
To prove that a defendant is an habitual offender, the State must establish by competent evidence the prior felony convictions and that defendant is the same person who was convicted of the prior felonies. State v. Chaney, 423 So.2d 1092, 1103 (La.1982); State v. Bailey, 97-302 (La.App. 5 Cir. 4/28/98), 713 So.2d 588, 610, writ denied, 98-1458 (La.10/30/98), 723 So.2d 971. The State may establish this by various means, such as the testimony of witnesses to prior crimes, expert testimony matching fingerprints of the accused with those in the record of prior proceedings or photographs contained in a duly authenticated record. State v. Bailey, 713 So.2d at 610; State v. Brown, 514 So.2d 99, 106 (La.1987), cert. denied, 486 U.S. 1017, 108 S.Ct. 1754, 100 L.Ed.2d 216 (1988). The State must further show that the prior convictions fall within the ten year cleansing period prescribed by
La. R.S. 15:529.1(C) ; Bailey, 713 So.2d at 610.Where a prior conviction resulted from a guilty plea, the State must show that the defendant was advised of his constitutional rights and that he knowingly waived those rights prior to the guilty plea, as required by Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969); State v. Shelton, 621 So.2d 769 (La.1993); State v. Bailey, 713 So.2d at 610. If defendant denies the allegations of the bill of information, the State has the burden of proving the existence of the prior guilty pleas and that defendant was represented by counsel. Shelton, 621 So.2d at 779; Bailey, 713 So.2d at 610. Once the State meets this burden, defendant must produce some affirmative evidence of an infringement of his rights or of a procedural irregularity. Shelton, 621 So.2d at 779; Bailey, 713 So.2d at 610. Thereafter, the State must prove the constitutionality of the plea. Shelton, 621 So.2d at 779; Bailey, 713 So.2d at 610.
In proving the constitutionality of the plea, the State must produce either a “perfect” transcript of the Boykin colloquy between the defendant and the trial judge or any combination of (1) a guilty plea form, (2) a minute entry, or (3) an “imperfect” transcript. Shelton, 621 So.2d at 780. If anything less than a “perfect” transcript is presented, the trial court must weigh the evidence submitted by the defendant and the State to determine whether the State met its burden of proof that defendant‘s prior guilty plea was informed and voluntary. Shelton, 621 So.2d at 780.
State v. Hollins, 99-278 (La.App. 5 Cir. 8/31/99), 742 So.2d 671, 684-685.
In the instant case, the state presented testimony from Lt. Patricia Adams of the Jefferson Parish Sheriffs Office, who was qualified as a fingerprint expert. She testified that she took defendant‘s fingerprints prior to the habitual offender hearing. During Lt. Adams‘s testimony, the state introduced certified copies of the bill of information, the minute entry showing defendant‘s guilty plea, the waiver of rights, the constitutional rights form, the plea of guilty, and the arrest register relating to Orleans Parish case number 342-203. These records show that Sean Monroe was convicted of possession of cocaine on May 15, 1990. The state introduced certified copies of the arrest rеgister, fingerprint copy, from the New Orleans Police Department, which was a certified copy of the same April 11, 1990, arrest register as found in state‘s exhibit 3; however, state‘s exhibit 4 was a darker copy and contained both palm prints and fingerprints. The state also introduced certified copies of the bill of information, the minute entry showing that defendant pled guilty, the plea of guilty form signed by defendant, the arrest register, and the minutes contained in the court record relating to Orleans Parish case number 345-826. These records show that Sean Monroe was convicted of possession of stolen property on November 29, 1990.
Lt. Adams testified that the fingerprints she took from defendant, state‘s exhibit 2, matched the fingerprints found on the arrest register, state‘s exhibit 4. She stated that the two fingerprints cоntained on state‘s exhibit 3 did not contain enough points for a proper identification. Lt. Adams claimed that the fingerprints on state‘s exhibit 2 matched the fingerprints found on the back of the bill of information in state‘s exhibit 5.
Defendant contends that Lt. Adams was unable to make an identification between the fingerprints in exhibit 3 pertaining to case number 343-203 and those she had just taken in exhibit 2. Although Adams could not make that identification, she did match defendant‘s fingerprints in exhibit 2 with those contained on the arrest register in exhibit 4, which was a certified copy of the same April 11, 1990, arrest register as found in state‘s exhibit 3. This Court has held that testimony comparing a defendant‘s current fingerprints with those found on prior arrest records is sufficient to prove that defendant was the person
Defendant also argues that the Boykin form associated with case number 343-203 had a different case number on it, 342-323, and that the state did not furnish a verbatim transcript of the plea in case number 343-203 as required by State v. Shelton, 621 So.2d 769 (La.1993). The state presented evidence that defendant pled guilty in case number 343-203. It introduced certified copies of the bill of information, the minute entry showing defendant‘s guilty plea, the waiver of rights, the constitutional rights form, the plea of guilty and the arrest register relating to case number 343-203. The state argues that the minute entry reflected the proper case number, and that the substance of the guilty plea form showed that the plea was entered for a charge of possession of crack cocainе and reflected the same sentence imposed in the minute entry on that date. According to Shelton, the burden then shifted to defendant to affirmatively prove an infringement on his rights or a procedural irregularity in the taking of the plea itself. In the instant case, defendant showed a procedural irregularity by pointing out that the Boykin form associated with case number 343-203 contained a different case number on it, 342-323. (However, a review of the Boykin form in question shows that it contains case number 342-203).
Thereafter, the state must prove the constitutionality of the plea. In proving the constitutionality of the plea, the state must produce either a “perfect” transcript of the Boykin colloquy between the defendant and the trial judge or any combination of (1) a guilty plea form, (2) a minute entry, or (3) an “impеrfect” transcript. If anything less than a “perfect” transcript is presented, the trial court must weigh the evidence submitted by the defendant and the state to determine whether the state met its burden of proof that defendant‘s prior guilty plea was informed and voluntary. In the instant case, the state did not produce a “perfect” transcript of the Boykin colloquy between the defendant and the trial judge. Therefore, the trial court was required to weigh the evidence to determine whether the state met its burden of proof. The trial judge stated:
After hearing the testimony of this witness, and you may step down, Madam, and considering the evidence as offered and the Court certainly thanks the arguments advanced by both State and the defendant, we are persuaded that the totality of the circumstances as indicated herein today as a result of this hearing, while there may be, as defense counsel points out some irregularities, if that‘s an appropriate term, we do not find that these irregularities are so fatal and so wanting for lack of explanation that the State has failed to maintain its burden. Quite the contrary, we find that the State has maintained its burden and will grant the relief requested at this time.
The trial judge weighed the evidence as required by Shelton, and found that the irregularity in case numbers was not “so fatal and so wanting for lack of explanation that the State failed to maintain its burden.” Therefore, based on the foregoing, we agree with the trial judge that sufficient evidence was produced to support a finding that defendant was a third felony offender.
Defendant argues that the trial court erred by imposing a life sentencе
When the judge finds that he has been convicted of a prior felony or felonies or adjudicated a delinquent as authorized in Subsection A, or if he acknowledges or confesses in open court, after being duly cautioned as to his rights, that he has been so convicted or adjudicated, the court shall sentence him to the punishment prescribed in this Section, and shall vacate the previous sentence if already imposed, deducting from the new sentence the time actually served under the sentence so vacated
. . .
When sentencing defendant after the multiple offender hearing, the trial judge stated:
Mr. Monroe, inasmuch as you‘ve been found guilty of two counts of armed robbery pursuant to La. R.S. 14:64 and sentenced on October 21, 1999 to eight years at hard labor for each count of armed robbery without benefit of probation, parole or suspension of sentence, and inasmuch as that conviction was the third felony conviction, and inasmuch as this Court granted the multiple bill pursuant to La. R.S. 15:529.1 in regard to the armed robbery conviction as to count no. 2, the previous sentence of this Court in relation to that conviction is hereby and you are sentenced as follows:
. . .
As can be seen, the transcript indicates that the trial judge did not actually utter the word “vacated.”
This Court has consistently ruled that, where the original sentence on the underlying offense has not been vacated before the habitual offender sentence is imposed, the defendant‘s original sentence remains in effect and the subsequent sentence as a multiple offender is null and void. State v. Carter, 96-358 (La.App. 5 Cir. 11/26/96), 685 So.2d 346; State v. Jackson, 95-423 (La.App. 5 Cir. 11/15/95), 665 So.2d 467.
Therefore, we are without a choice but to remand the matter for re-sentencing, once the trial judge has properly vacated the sentence on the original felony count.
ERROR PATENT DISCUSSION
The record was reviewed for errors patent, according to
Defendant argues that he was not given credit for time served on the sentence imposed in accordance with
A defendant shall receive credit toward service of his sentence for time spent in actual custody prior to the imposition of sentence.
Although the commitment reflects that the defendant was given credit for time served, the sentencing transcript indicates that the trial court failed to grant such credit. However, the legislature has reenacted article 880 to make the credit for prior custody self-operating. Thus, it is no longer necessary for this Cоurt to amend the defendant‘s sentence to reflect credit for time served. State v. Rainey, 98-436 (La.App. 5 Cir. 11/25/98), 722 So.2d 1097, 1107, writ denied, 98-3219 (La.5/7/99), 741 So.2d 28.
The trial judge did not inform defendant of the prescriptive period for post-conviction relief as is mandated by
The trial judge did not advise defendant of his multiple offender rights as required by
Therefore, for the above reasons, defendant‘s conviction is affirmed, and the matter is remanded for re-sentencing on the multiple offender conviction, and to allow the trial judge to comply with notice requirements regarding defendant‘s right to post conviction relief.
CONVICTION AFFIRMED; REMANDED FOR RE SENTENCING AND FOR CORRECTION OF PATENT ERRORS.