716 So. 2d 457 | La. Ct. App. | 1998
Defendant, Guy Strickland, was charged by bill of information filed on May 8, 1997 with simple burglary of an inhabited dwelling in violation of LSA-R.S. 14:62.2. After a trial by jury he was found guilty as charged, and sentenced to serve twelve years at hard labor, without benefit of probation, parole, or suspension of sentence.
Subsequently he was charged with, and pled guilty to, being a multiple offender. The trial court vacated defendant’s previous sentence and re-sentenced him in conformance with LSA-R.S. 529.1 to serve fifteen years at hard labor without benefit of probation or suspension of sentence. The sentence was made to run concurrent with a separate sentence defendant was serving as a result of a parole revocation.
^Defendant filed a timely appeal after the conviction and sentence on the charge of simple burglary of an inhabited dwelling, but before the guilty plea and sentence on the multiple offender bill. Initially we note that defendant’s appeal is premature as to the multiple offender proceeding. However, the procedural defect was cured by the subsequent re-sentencing after the adjudication. State v. Balser, 96-443 (La.App. 5 Cir. 11/14/96), 694 So.2d 351.
In our review of the record for errors patent we note that the defendant has received an illegally lenient sentence in that LSA-R.S. 14:62.2 requires the first year of the sentence is to be served without benefit of parole. The sentence imposed upon defendant herein does not reflect that restriction. However, because the state has not challenged the sentence we are without jurisdiction to ^correct it. State v. Fraser, 484 So.2d 122 (La.1986); State v. Bradford, 95-929 (La.App. 5 Cir. 6/25/96), 676 So.2d 1108.
For the foregoing reasons, we affirm defendant’s conviction and sentence and remand the matter to the district court with the above explained order.
AFFIRMED AND REMANDED WITH INSTRUCTIONS.