State v. SmithState v. Smith
Defendant, John M. Smith, was charged by bill of information with the crime of simple burglary in violation of
On April 25, 1980 defendant was sentenced to eighteen months. The sentence was suspended and defendant placed on active probation. The state filed a multiple bill against defendant on June 4, 1980. Smith then filed a motion to withdraw his guilty plea which was granted by the trial judge. After a trial by jury, defendant was convicted of attempted simple burglary under
While his appeal was pending, Smith filed a pro se habeas corpus application complaining that he was permitted to withdraw his guilty plea after sentence had been imposed and was later tried by jury, convicted and sentenced to six years. The application was granted and consolidated with his appeal.1
Defendant‘s contention that his conviction and sentence of six years constitutes double jeopardy is incorrect. Double jeopardy does not attach when a defendant himself moves to set aside his conviction.
The issue in this case is whether the trial judge exceeded his authority under
In our more recent decision, State v. Banks, 383 So.2d 1009 (La.1980), we concluded that the ruling of the trial judge allowing Banks to withdraw his guilty plea after sentence had been imposed was improper. We observed in a footnote that the record was silent as to the reason the defendant was permitted to withdraw his guilty plea. Thus, Banks did not address the situation presented in the instant case. In this case, Smith himself requested that his previous guilty plea be withdrawn and the eighteen month sentence vacated. In contrast to Banks, it is evident from the record that the terms of the pre-plea arrangement specifically provided that the state could file a multiple bill against Smith and that, if the state did so, Smith would be granted the option of withdrawing his guilty plea. There is nothing in the record to indicate that Smith did not enter into the agreement voluntarily or without knowledge of its terms, nor does defendant raise this contention in brief.
We hold that where it is clear from the record the accused himself requested through a post conviction motion that his guilty plea be withdrawn in accordance with the terms of a pre-plea agreement, the trial court may properly withdraw the former plea and vacate the sentence. Since in this situation the trial court is acting pursuant to its post conviction jurisdiction,
For these reasons, defendant‘s conviction and sentence of six years are affirmed.
Notes
C.Cr.P. 559 provides:
“The court may permit a plea of guilty to be withdrawn at any time before sentence.
The court shall not accept a plea of guilty of a felony within forty-eight hours of the defendant‘s arrest. When such a plea has been accepted within the forty-eight hour period, the court, upon a motion filed by the defendant within thirty days after the plea was entered, shall set aside the plea and any sentence imposed thereon.
When a plea of guilty has been withdrawn or set aside, the plea and the facts surrounding its entry shall not be admissible in evidence against the defendant at a trial of a case.”