State v. RoachState v. Roach
Defendant was charged by bill of information with possession of stolen property, a violation of
According to the multiple bill hearing transcript, defendant had previously pled guilty to simple burglary on December 23, 1985, in case number 85-2540 in 24th Judicial District Court in Jefferson Parish. Prior to 1994,
The State argues that the trial court erroneously found the defendant not to be a multiple offender on the grounds that the Ex Post Facto clause prohibits the use of the ten-year cleansing period under
In support of its argument, the state relies on the case of State v. Rolen, 95-0347 (La.9/15/95), 662 So.2d 446, which involved the DWI enhanced offense statute,
The reasoning of Rolen was held to apply to the habitual offender statute,
Furthermore, in State v. Brinson, 97-1471 (La.App. 4th Cir. 9/3/97), 699 So.2d 510, we recently held that the cleansing period in effect at the time of the latest offense controlled for purposes of
In the instant matter, the 1995 amendment to the statutory cleansing period did not eliminate any defense available under the law existing when the defendant committed the possession of stolen property and cocaine possession offenses in 1996, the only relevant crimes for purposes of this analysis. At the time of his arrest on April 28, 1996, defendant had been placed on notice by the State that the cleansing period had changed and he could no longer rely on the former five-year cleansing period which was applicable in 1985 at the time of his first conviction. There was no violation of the Ex Post Facto clause.
Accordingly, we grant the State‘s writ application and reverse the trial court‘s ruling that defendant was not a multiple offender. The matter is remanded for a multiple offender hearing and sentencing.
WRIT GRANTED;
REVERSED AND REMANDED.
PLOTKIN, J., dissents.
PLOTKIN, Judge, dissenting.
At the time of defendant‘s prior conviction,
A penal law is applied ex post facto if it is applied to the precipitating event retroactively and it disadvantages the defendant. Here, the defendant has been disadvantaged by a law enacted after the relevant event. Specifically, the pertinent “event” in this case is the date which marks the fifth anniversary from the defendant‘s completion of his sentence for the predicate offense. On that date, the defendant was completely “cleansed” of that conviction being used against him in a multiple bill at a later date. The conviction for multiple bill purposes had prescribed. However, through legislative amendment, the defendant is suddenly subjected to enhanced punishment because the cleansing period has been increased from five years to seven years, and finally to ten years.
The majority relies on State v. Rolen, 95-0347 (La. 9/15/95), 662 So.2d 446, to support the contention that this is not an ex post
At some point, the ability to use a defendant‘s past acts to enhance punishment of subsequent crimes must expire. If a defendant‘s statutory cleansing period of five years were to end in 1993, and the legislature extended it to seven years in 1994, then ten years in 1995, then twenty years in 1998, and so forth, the defendant could be subject to multiple offender enhancement of sentence for an indefinite period of time and thus be robbed of all opportunities to put his past acts to rest. The amended statute should not apply to those who have been “cleansed” prior to its enactment.
Thus, I believe that by applying the multiple offender statute retroactively, a prescribed event is being used to enhance a subsequent penalty, thus stealing from a defendant the vested right to be considered a “first offender” after successfully completing the five year cleansing period.