State v. SherryState v. Sherry
James A. Sherry pled guilty1 to a violation of
Appealing, defendant contends the trial court erred in: 1) denying his motion to suppress and 2) adjudicating him a second offender.
Before turning to defendant‘s assignments of error, we have examined the record for errors patent and find that though the minute entry does not indicate whether or not defendant was present at arraignment, it does reflect his attorney was present and entered a plea of not guilty. Nonetheless, the record does indicate defendant‘s presence at the withdrawal of his plea of not guilty and his entering a guilty plea on a later date. Any irregularity in the arraignment is waived if the defendant either pleads guilty or goes to trial without objecting to the irregularity. See
ASSIGNMENT OF ERROR ONE
In connection with the motion to suppress, defendant argues the police officer‘s investigatory stop of him for carrying a knife was erroneously based on the officer‘s uncorroborated belief that defendant might commit some future criminal activity and not because he was committing or had committed a crime. According to Sherry, the knife taken from him by the arresting officer was not the type of weapon described in
Evidence adduced at the suppression hearing reveals that the arresting officer, while on duty in the French Quarter during the Mardi Gras season, was about 15 to 20 feet away from defendant when he observed what appeared to be the outline of a knife in the defendant‘s right front pocket. This prompted him to stop the defendant and conduct a “pat-down” search, which resulted in a seizure of a 4½ inch “block blade” knife and defendant‘s subsequent arrest for violation of
The right of law enforcement officers to stop and interrogate one reasonably suspected of criminal conduct is recognized by
When a lawful arrest is made for probable cause, a warrantless search incident
In the instant case, taking into account the French Quarter location and the Mardi Gras holiday period, the officer‘s observation of what appeared to be a concealed knife on Sherry gave him reasonable cause to believe that defendant had an illegal weapon in his possession, thus prompting the investigatory stop. See State v. Jackson, 452 So.2d 776 (La. App.4th Cir.1984). Furthermore, since the arresting officer was aware that the knife found on defendant was the type used to commit various crimes, there existed probable cause to arrest and conduct a search incident thereto. Accordingly, we cannot say the trial judge erred in denying the motion to suppress. We find no merit to this assignment.
ASSIGNMENT OF ERROR TWO
In the next assignment, defendant argues that the trial judge erred in adjudicating him a second offender under
“....shall not be applicable in cases where more than five years have elapsed since the expiration of the maximum sentence, or sentences, of the previous conviction, or convictions, and the time of the commission of the last felony for which he has been convicted....”
The well settled rule is that the determination of the expiration of a sentence is the date that the defendant is discharged from supervision; that is the discharge date under the sentence imposed. See State Ex Rel. Wilson v. Maggio, 422 So.2d 1121 (La.1982); State v. Anderson, 349 So.2d 311 (La.1977).
In the instant case, the State introduced evidence that defendant had been convicted in the State of Massachusetts of breaking and entering with an intent to steal, and had been sentenced to serve six years and one day on March 14, 1975. On the same day, he had also been convicted of possession of heroin resulting in an undetermined sentence to be served concurrently with the earlier sentence. Defendant was released on parole one year later on March 15, 1976. According to the certificate of parole, the “unexpired portion of” his “sentence” is March 14, 1981. This date is defendant‘s date of discharge from supervision. Accordingly, because not more than five years have elapsed between the date of discharge from supervision (March 14, 1981) and the date of arrest, we cannot say the trial judge erred in adjudicating Sherry a second offender. See State v. Vincent, 387 So.2d 1097 (La.1980).
Having so concluded, we affirm the sentence imposed.
AFFIRMED.