State v. PresleyState v. Presley
- Reporters:
- ,
- Before:
- Amy
AMY, Judge.
The defendant pled guilty to attempted assault by drive-by shooting and aggravated criminal damage to property. The defendant
Factual and Procedural Background
On or about August 22, 1998, the defendant allegedly fired several shots from a motor vehicle into an occupied trailer home. The defendant was later arrested, and on October 26, 1998, was charged with one count of assault by drive-by shooting, a violation of
On January 6, 1999, the defendant, pursuant to a plea agreement and with the assistance of counsel, entered a plea of guilty to the charges of attempted assault by drive-by shooting and aggravated criminal damage to property. The defendant was later sentenced to two and one-half years at hard labor for the former charge and eight years at hard labor as well as a $500 fine for the latter. The sentences were ordered to run concurrently. A motion to reconsider sentence was filed and later denied without a hearing.
Counsel for the defendant filed a motion to withdraw as counsel with an accompanying brief in accordance with the United States Supreme Court case of Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Counsel asserts that after his review of the record, he finds that no nonfrivolous issues can be presented on appeal. Thus, he claims he should be allowed to withdraw as counsel in this matter.
Merits
Errors Patent
In accordance with
The defendant in this matter was originally charged with assault by drive-by shooting, in violation of
The offense of assault by drive-by shooting is defined as “an assault committed with a firearm when an offender uses a motor vehicle to facilitate the assault.”
When addressing a similar issue, the Louisiana Supreme Court in State v. Eames, 365 So.2d 1361, 1363 (La.1978), explained:
If the definition of another crime includes the attempt to do something, the attempt statute,
R.S. 14:27 , cannot be employed, for then a defendant would be charged with an attempt to attempt to do an illegal act. The reporter‘s comment toR.S. 14:27 makes this clear:“This section is in accord with the general common law concept of attempt. An attempt to commit any crime is an offense, whether the offense attempted be a felony or merely a misdemeanor. Clark and Marshall, Law of Crimes (4th ed.1940) 153, § 113. Since there can be no such thing as an attempt to commit an attempt, there can be no attempt to commit either an aggravated assault or a simple assault. Those offenses are themselves in the nature of attempts to commit a battery. See Clark and Marshall, supra, 156, § 114(d).”
(Emphasis added.) See also State v. Poe, 214 La. 606, 38 So.2d 359, 362 (1948).
In accordance with the jurisprudence on this issue, we find that in as much as an attempted assault is not a recognized offense under Louisiana criminal law, neither is an attempted assault by drive-by shooting. Thus, we conclude that the defendant in this matter has entered a guilty plea to an offense which does not exist and for that reason, the plea should be vacated. Moreover, because the defendant‘s guilty plea to aggravated criminal damage to property was part of the same plea agreement which provided for a charge the trial court did not have authority to accept, it too must be vacated. State v. Cook, 372 So.2d 1202 (La.1979). See also State v. Alfred, 95-76 (La.App. 3 Cir. 5/3/95); 657 So.2d 116; State v. Price, 461 So.2d 503 (La.App. 3 Cir.1984).
Accordingly, we vacate the defendant‘s plea in this matter, set aside the conviction and sentences imposed, and remand this matter to the trial court for further proceedings. The defendant has the option of either proceeding to trial on the offenses charged or entering a plea of guilty. Cook, 372 So.2d 1202. If the defendant chooses to plead guilty, the sentence imposed shall be no greater than the sentence he originally received. Id.
Due to our findings as to the defendant‘s guilty plea, we do not address the merits of the defense counsel‘s Anders brief and, accordingly, deny his motion to withdraw as counsel in this matter.
DECREE
For the foregoing reasons, the defendant‘s guilty plea is vacated, the convictions and sentences are reversed, and this matter is remanded to the trial court with instructions.
REVERSED AND REMANDED.
Notes
“The defendant, with the consent of the district attorney, may plead guilty of a lesser offense that is included in the offense charged in the indictment.”