State v. PowellState v. Powell
The defendant, James Preston Powell, was charged by bill of information with driving while intoxicated, third offense, a violation of
DISCUSSION
We note an error patent in the guilty plea colloquy. The plea colloquy forms a part of the proceeding which may be inspected for error patent on the face of the record. State v. Godejohn, 425 So.2d 750 (La.1983); State v. Watts, 550 So.2d 711 (La.App.2d Cir.1989).
On April 21, 1994, James Powell operated a vehicle under the influence of alcohol, a violation of
In addition to a waiver of the right to trial by jury, the right of confrontation, and the right against compulsory self-incrimination, in order to make a knowing and intelligent decision to plead guilty, the defendant must be advised of the penalty exposure for the offense to which he pleads guilty. See State v. Smith, 513 So.2d 544 (La.App.2d Cir.1987); See State v. Garth, 622 So.2d 1189 (La.App.2d Cir.1993). Further, if the statute under which the defendant is pleading provides that the sentence is to be served without benefit of parole, probation or suspension of sentence, the defendant must be so informed. State v. Monroe, 25,825 (La.App.2d Cir. 3/30/94), 635 So.2d 481; State v. Williams, 554 So.2d 139 (La.App.2d Cir. 1989); State v. Hodges, 26,171 (La.App.2d Cir. 8/17/94), 641 So.2d 728. The due process
The plea colloquy in the present case reflects that Powell validly waived his rights to confrontation and jury trial and his privilege against self-incrimination. However, the colloquy is devoid of advice, either from the court or counsel, of the penalty for driving while intoxicated, third offense. Further, defendant was not advised that at least six months of his sentence must be served without benefit of parole, probation, or suspension of sentence.
The record shows that the defendant may not have knowingly and intelligently pled guilty to driving while intoxicated, third offense. Therefore, we conditionally vacate the conviction and sentence of the defendant, James Preston Powell, and remand this case to the trial court for a hearing, within a reasonable time, regarding the voluntariness of defendant‘s plea. If it is determined that the plea was knowingly and intelligently entered after the defendant was counseled or informed of the penalty exposure for driving while intoxicated, third offense by his attorney, the record shall be supplemented accordingly and the defendant may then be granted an appeal of that determination. If it is determined that the plea was not knowingly and intelligently entered, the plea shall be set aside and further prosecution of the defendant may be undertaken. See State v. Garth, supra.
Because of the above stated disposition, we decline to discuss the defendant‘s assignment of error concerning the denial of his motion to quash the bill of information.
CONDITIONALLY VACATED AND REMANDED.