State v. NarcisseState v. Narcisse
Freddie Narcisse, the defendant, was charged on April 26, 1984, with the second degree murder of one Rivers Jackson in Lafayette in violation of
In exchange for the dismissal of the murder charge, the defendant entered a plea of guilty to manslaughter. This voluntary and well Boykinized plea was entered and accepted by the trial court on April 12, 1985.
The defendant was thereafter sentenced on August 29, 1985, to serve twelve (12) years at hard labor in the custody of the Department of Corrections. Five years of that sentence was imposed without benefit of parole, probation or suspension of sentence under La.C.Cr.P. Article 893.1. In addition, the defendant was sentenced to serve two (2) years at hard labor in the custody of the Department of Corrections without benefit of parole, probation or suspension of sentence under
La.C.Cr.P. 893.1 mandates a minimum sentence and negates parole, probation or suspension of sentence when the court finds that a firearm was used in the commission of a felony, as was found here. R.S. 14:95.2 mandates an additional two (2) year term of imprisonment without benefit of parole, probation, suspension of sentence or credit for good time when a firearm is used in the commission of certain enumerated felonies, of which manslaughter is one.
It is from the application of these provisions to his sentencing that defendant now seeks appeal in this court, assigning as error that the provisions are unconstitutional in that they place the defendant in double jeopardy and violate equal protection.
ERROR PATENT
For reasons not raised by defendant’s assignments of error, we find the addition
In State v. Jackson,
The record disclosed that the indictment neither charged the defendant with firearm use nor with a violation of R.S. 14:95.2, and the additional two-year sentence is therefore illegal. In Jackson, supra, the court further held that the application of La.C.Cr.P. 893.1, which mandates a minimum sentence and negates parole, probation or suspension of sentence when the court finds that a firearm was used in the commission of a felony, simply requires written notice by the prosecution prior to trial of its intent to have the article applied. There was no such notice in this case; however, this ruling in Jackson, supra, was held to be given prospective application only, unless particular prejudice can be shown to the defendant. In this case, no such prejudice was shown.
ASSIGNMENTS OF ERROR NOS. 1 AND 2
In these assignments of error, the defendant argues that the application of
Since we find that R.S. 14:95.2 cannot be applied in this case, these assignments are rendered moot.
ASSIGNMENT OF ERROR NO. 3
The defendant also assigned as error the application of the above discussed enhancement provisions contending those statutes constitute an unlawful and unconstitutional violation of equal protection, by virtue of the fact that persons who commit offenses with firearms are treated more harshly than those whose offenses are committed with other dangerous and deadly weapons.
This assignment of error, not having been briefed, is considered abandoned. State v. Dewey,
In any event, the Louisiana Supreme Court has recently settled this issue, holding that armed criminals do not constitute a “protected class of persons” and further that this law was specifically tailored to alleviate the problem of gun wielding felons and is clearly rationally related to a valid governmental objective. State v. Barberousse,
Accordingly, the assignment is without merit.
For the foregoing reasons, defendant’s conviction is affirmed, but his sentence is vacated and the case remanded to the trial court for resentencing in accordance with the law and the views expressed above.
CONVICTION AFFIRMED, REMANDED FOR RESENTENCING.
Notes
. The in tandem application of La.C.Cr.P. Article 893.1 and