State v. ParkerState v. Parker
Kevin Parker was charged in a single bill of information with five counts of armed robbery, in violation of
The defendant‘s first apрeal was decided by this Court in an unpublished opinion. State v. Parker, No. KA 87 0826-7, December 22, 1987. In that opinion, this Court did not consider the defendant‘s assignments of error rеlating to his motions to suppress, because he had not specifically reserved his right to obtain appellate review of thesе motions to suppress pursuant to State v. Crosby, 338 So.2d 584 (La.1976). This Court also noted patent sentencing error, in that all three of the defendant‘s convictions, which were entered on the same date, were enhanced under the Habitual Offender Statute. See State v. Sherer, 411 So.2d 1050, 1057 (La.1982);1 State v. Singleton, 444 So.2d 343, 345 (La.App. 1st Cir.1983).
After this matter was remanded to the trial court, the defendant filed a motion to withdraw his guilty pleas, on the basis that he had been denied review of the trial court‘s denial of his motions to suppress. The trial court denied the motion to withdraw the guilty pleas. However, in an attempt to facilitate appellate review of the motion to suppress issues, the trial court granted an out-of-time appeal and specifically stated that the defendant rеserved the right to appellate review of the motion to suppress issues. Subsequently, the defendant was again adjudicated a second felony habitual offender; and the trial court imposed a single sentence of thirty-three years at hard labor, without benefit of parole, probation, or suspension of sentence, with credit for time served.
In the defendant‘s second appeal, State v. Parker, 552 So.2d 771 (La.App. 1st Cir. 1989), this Court again refused to consider the defendant‘s assignments of error relating to the trial court‘s rulings on the motions to suppress, noting that the defendant had not reserved his right to appellate review of the rulings pursuant to State v. Crosby and further noting that the trial court‘s attempt to remedy the situation was procedurally incorrect. In that opinion, this Cоurt vacated the habitual offender adjudication because it did not specifically indicate which one of the defendant‘s three armed robbery convictions was being enhanced pursuant to
The State filed an habitual offender bill of information indicating that the armed robbery conviction being enhanced pursuant to
The defendant has appealed for the third time, alleging two assignments of error, as follows:
1. The trial court erred in adjudicating thе defendant a second felony habitual offender.
2. The trial court erred in imposing an excessive sentence and in failing to comрly
with the sentencing guidelines of La. C.Cr.P. art. 894.1 .
Assignment of error number one was not briefed on appeal and, therefore, is considered abandoned. Uniform Rules— Courts of Appeal, Rule 2-12.4.
ASSIGNMENT OF ERROR NUMBER TWO:
Again, this Court will not address the defendant‘s assignment of error. Both the State and the defendant, in their briefs to this Court, note that the trial court аgain imposed only a single sentence for the defendant‘s three armed robbery convictions. It is well settled that a defendant can appeal from a final judgment of conviction only where sentence has been imposed.
We note a second patent error. In our рrevious opinions, we stated that only one of the defendant‘s three armed robbery convictions could be enhanced and that thе habitual offender bill of information should clearly indicate which one of the three convictions was being so enhanced. In anothеr attempt to comply with this Court‘s instructions relating to the habitual offender enhancement proceedings, the State filed an amended habitual offender bill of information indicating that Count 1 of bill of information number 12-86-2 was being enhanced pursuant to
DECREE
Accordingly, the defendant‘s convictions are affirmed, the habitual offender adjudicаtion and sentence are again vacated; and this case is remanded (for the third time) to the trial court with the following instructions. If the State again elects to institute habitual offender proceedings, only one of the defendant‘s three armed robbery convictions may be so enhanced. The habitual offender bill of information must specifically indicate which of the three convictions is being enhancеd. To do so, the State may wish to refer to the particular count and victim of the armed robbery conviction being so enhanced. Furthermore, the trial court shall impose three separate sentences, one for each of the defendant‘s three armed robbery convictions, whether or not one of these convictions is enhanced pursuant to
CONVICTIONS AFFIRMED. HABITUAL OFFENDER ADJUDICATION AND SENTENCE VACATED. REMANDED WITH INSTRUCTIONS.