16626-KA | La. Ct. App. | Jan 23, 1985
STATE of Louisiana, Appellee,
v.
Marshall L. ROWLINS, Appellant.
Court of Appeal of Louisiana, Second Circuit.
*830 Nesib Nader, Shreveport, for appellant.
William J. Guste, Jr., Atty. Gen., Baton Rouge, Paul J. Carmouche, Dist. Atty., Richard L. Carney, John A. Broadwell, Asst. Dist. Attys., Shreveport, for appellee.
Before HALL, MARVIN and SEXTON, JJ.
MARVIN, Judge.
A sentence of five years at hard labor for a 1984 burglary is not constitutionally excessive for a 25-year-old defendant who had been convicted of a 1980 burglary and had received a probated five-year sentence at hard labor.
The trial court erred, however, by making the 1984 sentence consecutive with "any other sentence," which presumably was the prior probated sentence. CCrP Art. 901C(2). That determination must be made in a revocation hearing by the court that imposed the 1980 sentence. State v. Ester, 436 So. 2d 543" court="La." date_filed="1983-09-01" href="https://app.midpage.ai/document/state-v-ester-1744613?utm_source=webapp" opinion_id="1744613">436 So. 2d 543 (La.1983). Compare CCrP Arts. 900, 901, 833.
The sentence is vacated and defendant is remanded to the trial court for resentencing.