State v. Scott

490 So. 2d 465 | La. Ct. App. | 1986

SCHOTT, Judge.

Defendant was convicted of possession of heroin with intent to distribute in violation of R.S. 40:966 and sentenced to life at hard labor without benefit of probation, parole, or suspension of sentence. In his brief he requests only a review of the record for errors patent and assigns no specific error.

The minute entry of the trial is not in the record. Thus, we questioned whether the jury composition was proper and the verdict responsive although defendant has raised neither point. As to the composition of the jury the record contains a jury list which shows twelve jurors were seated at the beginning of this one day trial. At the end of the trial transcript there is this statement by the court: “Each of the copies of that exhibit are now being distributed among the 12 jurors ...” As to the responsiveness of the verdict, defendant was charged with possession of heroin with intent to distribute and the transcript contains the entry at the end of the record: “Verdict: Guilty as Charged.” Accordingly even though the minute entry is missing the record shows the jury was properly constituted and the verdict responsive.

An error patent appears in defendant’s sentence, which is for life imprisonment without benefit of probation, parole, or suspension of sentence. R.S. 40:966(B)(1) prescribes the maximum sentence as life without benefit of probation or suspension of sentence but not without benefit of parole. Thus, the sentence was illegally excessive and must be vacated.

Accordingly, the conviction is affirmed but the sentence is vacated and the case remanded for resentencing in accordance with law.

CONVICTION AFFIRMED SENTENCE VACATED REMANDED FOR RESEN-TENCING.