State v. MourraState v. Mourra
- Reporters:
- ,
- Before:
- Edward A. Dufresne Jr., Clarence E. McManus, James C. Gulotta
The Defendant, Salvador Mourra, appeals from his guilty plea to attempted possession of a firearm by a convicted felon and his sentence to imprisonment at hard labor for five years. We affirm.
On July 22, 2005, the Jefferson Parish District Attorney filed a bill of information charging the Defendant with possession of a firearm by a convicted felon in violation of
On that same date, the state amended the bill of information reducing the charge to attempted possession of a firearm by a convicted felon in violation of
After the bill of information was amended to the reduced charge, the Defendant withdrew his plea of not guilty and pled guilty as charged under State v. Crosby, 338 So.2d 584 (La.1976), reserving his right to appeal the trial court‘s denial of the motion to quash. The trial court subsequently sentenced the Defendant to imprisonment at hard labor for five years to run concurrently with an earlier probation revocation.
ASSIGNMENT OF ERROR NUMBER ONE
In Defendant‘s sole assignment of error, he argues the trial judge erred in denying his motion to quash the bill of information. Mourra contends the State should not have charged him with a violation of
The State responds that there is no ex post facto violation in this case, citing State v. Sugasti, 01-3407 (La.6/21/02), 820 So.2d 518, and State v. Girod, 04-854 (La.App. 5th Cir.12/28/04), 892 So.2d 646, writ denied, XXXX-XXXX (La.6/3/05), 903 So.2d 455 in support of its position. The State argues that the amendment to
In the instant case, the Defendant was charged with violating
Historically, when paragraph 13 was added to
The Clause provides simply that “no State shall . . . pass any . . . ex post facto Law.”
Art. I, § 10, cl. 1 . The most well-known and oft-repeated explanation of the scope of the Clauses‘s protection was given by Justice Chase, who long ago identified, in dictum, four types of laws to which the Clause extends:
1st. Every law that makes an action done before the passing of the law, and which was innocent when done, criminal; and punishes such action. 2d. Every law that aggravates a crime, or makes it greater than it was, when committed. 3d. Every law that changes the punishment, and inflicts a greater punishment, than the law annexed to the crime, when committed. 4th. Every law that alters the legal rules of evidence, and receives less, or different, testimony, than the law required at the time of the commission of the offense, in order to convict the offender. Calder v. Bull, 3 Dallas [U.S.] 386, 390, [1 L.Ed. 648] (1798) (seriatim opinion of Chase, J.)
See also: California Dept. of Corrections v. Morales, 514 U.S. 499, 115 S.Ct. 1597, 131 L.Ed.2d 588 (1995); Collins v. Youngblood, 497 U.S. 37, 41-42, 110 S.Ct. 2715, 111 L.Ed.2d 30 (1990).
In State v. Everett, 00-2998 (La.5/14/02) 816 So.2d 1272, the Court stated that the focus of the ex post facto inquiry is whether a new law redefines criminal conduct or increases the penalty by which the crime is punishable. State v. Williams, 00-1725 (La.11/29/01), 800 So.2d 790; State ex rel. Olivieri v. State, 00-0172 (La.2/21/01), 779 So.2d 735, cert. denied, 533 U.S. 936, 121 S.Ct. 2566, 150 L.Ed.2d 730 (2001). In analyzing the ex post facto implications of the Habitual Offender Law in Everett, the Court noted that “the relevant `offense’ is the current crime, not the predicate crime.” State v. Rolen, 95-0347, p. 3 (La.9/15/95), 662 So.2d 446, 448 (quoting United States. v. Arzate-Nunez, 18 F.3d 730, 734 (9th Cir.1994)). Further, the Louisiana Supreme Court recently, in State v. Sugasti 01-3407 (La.6/21/02), 820 So.2d 518, reiterated that it has consistently been held that the law in effect at the time of the commission of the offense is determinative of the penalty which the convicted accused must suffer. State v. Wright, 384 So.2d 399, 401 (La.1980).
While the Defendant is correct that, when he committed the offense of aggravated flight from an officer, the offense was not defined as a crime of violence, his argument overlooks the fact that the applicable law is that in effect at the time of the commission of the current offense and not the predicate crime. State v. Rolen, supra. The 2003 amendment to
In cases similar to the instant one, both the Supreme Court, in State v. Everett, supra, and this Court, in State v. Girod, supra, applied the same reasoning in finding no ex post facto violations where the changes in the statutes were effective before the defendants committed their latest offenses.
In Everett, the Court considered the ex post facto implications of an amendment to the Habitual Offender Law,
The 1995 amendment did not redefine criminal conduct or increase the punishment after defendant committed the underlying offense, the only relevant crime for purposes of ex post facto analysis. At the time defendant committed the underlying offense on September 5, 1998, he had been placed on notice by the State that the period of applicability of the Habitual Offender Law had changed and that he could no longer rely on the former five-year period of applicability to abate the collateral consequences of his prior convictions for any future violations of the statute. We therefore conclude the 1995 amendment to
La. R.S. 15:529.1(C) is applicable to defendant‘s multiple offender adjudication in 1999.
Similarly, in Girod, this Court found no ex post facto violations where the crime of simple robbery had been redefined as a crime of violence after the defendant had been convicted of the offense but before he committed a subsequent offense, allowing the imposition of an enhanced penalty for one previously convicted of a crime of violence. This Court found that the 1992 amendment that added
In his reply brief, the Defendant attempts to distinguish Girod, arguing that the present case, unlike Girod, involved a defective boykinization3 which only became evident after the Defendant‘s arrest on the instant charge. The Defendant points out that the instant case, unlike Girod, involved a violation of
We find the reasoning in Girod persuasive. As in Everett and Girod, we find no ex post facto violation in this case. The 2003 amendment to
Accordingly, we find no error in the trial court ruling denying the Defendant‘s motion to quash.
ERROR PATENT DISCUSSION
The record was reviewed for errors patent, according to
Accordingly, for the reasons set out above, we affirm the Defendant‘s conviction for possession of a firearm by a convicted felon and his sentence to five years imprisonment at hard labor.
CONVICTION AND SENTENCE AFFIRMED.