State v. RamirezState v. Ramirez
- Reporters:
- ,
- Before:
- Doucet, Saunders, Amy
Defendant was charged with possession of cocaine in excess of 400 grams, in violation of
FACTS:
On March 30, 1993, defendant was stopped for a traffic violation on Interstate 10 by Trooper Travis Savoy. A consent to search was obtained and the drug dog Zeke “alerted” on the gas tank of defendant‘s vehicle. The search of the gas tank revealed nine packages of cocaine weighing a total of approximately eight point three (8.3) pounds.
ERRORS PATENT:
The following matters and no others shall be considered on appeal:
(1) An error designated in the assignment of errors; and
(2) An error that is discoverable by a mere inspection of the pleadings and proceedings
without inspection of the evidence.
A review of the record reveals several errors patent.
The first error patent concerns the form of the indictment. The bill of information contained the citation,
The second error patent concerns the legality of the sentence imposed by the trial judge. Although a trial court is permitted to suspend imposition of a sentence under
Louisiana Code of Criminal Procedure Article 893 allows a trial judge to suspend imposition or execution of a sentence after a first or second conviction for a noncapital felony, but defendant must be placed on probation. The record shows Willis was not placed on probation as required by Louisiana Code of Criminal Procedure Article 893. The mandatory probation requirement of this provision compels that we must vacate Willis’ sentence and remand the case for resentencing pursuant to Louisiana Code of Criminal Procedure Article 893. See State v. Fann, 597 So.2d 1230 (La.App. 3 Cir.1992).
In so holding, this court concluded the failure to place the defendant on probation made the sentence illegal and not illegally lenient. In this case neither party complained. However, in recognizing this patent error, we find the sentence imposed in this case, like the one imposed in Willis, to be illegal rather than illegally lenient. The trial judge suspended a portion of the sentence, but did not place defendant on probation as required by statute.
In the case sub judice, the trial judge sentenced defendant to twenty (20) years at hard labor and suspended all but thirteen (13) years of the sentence. The thirteen (13) year sentence was also conditioned on defendant‘s reporting within ten (10) days. When suspending the sentence imposed, the trial judge failed to provide for probation as required by
The third patent error we discovered was the trial court‘s failure to give defendant credit for time served.
The fourth and final error patent concerns
The minutes reflect that the trial judge informed the defendant of the three year prescriptive period for filing post-conviction relief at the time of the guilty plea rather than at the time of sentencing as required by La.C.Cr.P. Art. 930.8. The three year prescriptive period does not begin to run until the judgment is final under either La.C.Cr.P. Art. 914 or Art. 922, so prescription is not yet running. Apparently, the purpose of this notice is to inform the defendant of the prescriptive period in advance. We find that the notice defendant received at the time of his guilty plea is sufficient; however, out of an abundance of caution, we will nonetheless ask that the district court inform the defendant of La.C.Cr.P. Art. 930.8 by sending appropriate written notice within 10 days of the rendition of this opinion and file written proof that the defendant received notice in the record of these proceedings.
The defendant in Green pled guilty on October 20, 1993, and was sentenced on February 16, 1994. Since Green, the Louisiana Supreme Court has held the trial court‘s failure to notify the defendant at the time of sentencing of the prescriptive period for filing a post-conviction relief application did not bestow an enforceable right upon the defendant. See State ex rel. Glover v. State of Louisiana, 93-2330 (La. 9/5/95); 660 So.2d 1189. Thus, this court need not recognize the trial court‘s failure to provide the 930.8 notice at sentencing when, as here, defendant was informed of the prescriptive period at the time of the guilty plea. In any event, since defendant must be resentenced, the trial judge can, once again, advise him of this limitation.
ASSIGNMENTS OF ERROR NOS. 1 and 2:
By defendant‘s first assignment of error, he argues the trial court erred by failing to take into consideration any mitigating factors pursuant to the sentencing guidelines and sentenced him to a term of imprisonment far exceeding the terms as listed in the sentencing guidelines. By defendant‘s second assignment of error, he argues the trial court erred in sentencing him to a term of imprisonment of twenty (20) years at hard labor, as such was an excessive sentence, which is cruel and unusual pursuant to the United States and Louisiana Constitutions.
The error patent concerning defendant‘s sentence pretermits discussion of defendant‘s assignments of error. See State v. Willis, 95-316 (La.App. 3 Cir. 10/4/95); 663 So.2d 392.
CONCLUSION:
Defendant‘s conviction is affirmed. However, due to the error patent with respect to the sentence imposed, the sentence is vacated and the case remanded for resentencing in accordance with