STATE of Louisiana v. Daniel SUGASTI
No. 01-KA-770.
Court of Appeal of Louisiana, Fifth Circuit.
November 27, 2001.
802 So.2d 943
MARION F. EDWARDS, CLARENCE E. McMANUS and WALTER J. ROTHSCHILD.
Paul D. Connick, District Attorney, Terry M. Boudreaux, Alison Wallis, Kia Habistreitinger, Assistant District Attorneys, 24th Judicial District, Parish of Jefferson, Gretna, LA, Counsel for, State of Louisiana, Plaintiff-Appellant. Lane Rutherford Trippe, New Orleans, LA, Counsel for, Daniel Sugasti, Defendant-Appellee.
On June 14, 1999, the defendant, Daniel Sugasti, was charged by bill of information with possession of a controlled dangerous substance, to wit: heroin, in violation of
On June 21, 2001, the defendant entered into a negotiated plea agreement with the State. The trial court advised the defendant of his constitutional rights. The defendant waived these rights and the trial court accepted his plea of guilty as freely and voluntarily given. Thereafter, the trial court sentenced the defendant to five years at hard labor on the heroin charge.1 The sentence was suspended and the defendant was placed on five years of active probation. He was also ordered to pay a $5,000.00 fine, court costs, and a commissioner‘s fee. The State objected to the imposition of this sentence on the grounds that it was illegally lenient. The State then moved for and was granted this appeal.
LAW AND DISCUSSION
The defendant contends that this Court does not have jurisdiction to hear this State appeal. He argues that
A. Only a final judgment or ruling is appealable.
B. The state cannot appeal from a verdict of acquittal. Adverse judgments or rulings from which the
state may appeal include, but are not limited to, judgments or rulings on: 1) A motion to quash an indictment or any count thereof;
2) A plea of time limitation;
3) A plea of double jeopardy;
4) A motion in arrest of judgment;
5) A motion to change the venue;
6) A motion to recuse....
(Emphasis added).
A final judgment is one which puts an end to the proceedings. State v. Quinones, 94-436 (La.App. 5 Cir. 11/29/94), 646 So.2d 1216, 1217. Therefore, a judgment which imposes sentence is a final judgment. In the instant case, the State appeals the defendant‘s sentence which is a final judgment and is appealable pursuant to
Furthermore,
On appeal, the State argues that the sentence imposed does not conform to the requirements of the statute under which the defendant pled guilty, and the State objected to the suspension of sentence at the time of its imposition. Therefore, the matter is properly before this Court on appeal pursuant to
The crime for which the defendant pled guilty and was sentenced, namely possession of heroin, occurred on September 5, 1998. At the time of the commission of this offense,
It is unlawful for any person knowingly or intentionally to possess a controlled dangerous substance classified in Schedule I unless such substance was obtained directly, or pursuant to a valid prescription or order, from a practitioner or as provided in R.S. 40:978, while acting in the course of his professional practice, or except as otherwise authorized by this Part. Any person who violates this Subsection with respect to:
1) A substance classified in Schedule I which is a narcotic drug (all substances in Schedule I preceded by an asterisk), shall be imprisoned at hard labor for not less than four years nor more than ten years without benefit of probation or suspension of sentence, and may in addition, be required to pay a fine of not more than five thousand dollars.
(Emphasis added.)
Effective June 15, 2001,
In the present case, the defendant was sentenced on June 21, 2001, which was after the effective date of the amendment to
On appeal, the State argues that the trial court erred when he applied the amended version of
In State v. Wright, 384 So.2d 399, 401 (La.1980), the Louisiana Supreme Court held that “the law in effect at the time of the commission of the offense is determinative of the penalty which the convicted accused must suffer.” This rule of law has been consistently applied in the courts of this state. In State v. Thomas, 464 So.2d 470, 472 (La.App. 1 Cir.1985), the First Circuit stated that it is the penalty provision at the time of the commission of the offense, not the time of sentencing, that is applicable. In State v. Lapoint, 93-1141 (La.App. 3 Cir. 4/6/94), 635 So.2d 554, 559, vacated on other grounds and remanded, 94-1173 (La.9/23/94), 642 So.2d 1304, the Third Circuit recognized the general law that a criminal defendant is to be sentenced under the statute in effect at the time of the commission of the crime. In State v. Bryan, 535 So.2d 815, 820 (La. App. 2 Cir.1988), the Second Circuit held that a criminal offense is punishable according to the statutory penalties in effect when the offense was committed.
The defendant argues that even if the penalty at the time of the offense is generally applicable, his suspended sentence was permissible because the trial judge was obliged to consider that the legislature had reduced the penalty for this offense when he sentenced him. He asserts that the trial judge effectuated the intent of the legislature in reducing the penalty for this offense when he suspended his sentence.
In support of his position, the defendant relies on State v. Clark, 391 So.2d 1174 (La.1980). In Clark, the defendant argued that his sentence was excessive. In evaluating excessiveness, the Louisiana Supreme Court concluded that the ameliorative changes in the penalty provision of a statute which occurs after the commission of the offense is a factor to be weighed by the trial judge in imposing sentence. Id. at 1176. However, the Supreme Court noted that “it is the rule in this state that the penalty provision in effect at the time of the offense is the applicable provision.” Id. Although Clark indicates that the trial judge should consider the ameliorative changes in the law, it does not provide that the trial judge should derogate from the penalty provision in effect at the time of the commission of the offense. In State v. Jones, 99-2207 (La.App.1/29/01), 778 So.2d 1131, 1134, the Louisiana Supreme Court stated that “the legislature‘s subsequent changes in pertinent law remain a relevant sentencing consideration within the limits fixed by law at the time of the commission of the crime.” (Emphasis added).
In the instant case, the defendant committed the crime of possession of heroin on September 5, 1998, which is prior to the effective date of the amendment to
The record was reviewed for errors patent, pursuant to
At the time of sentencing, the trial judge advised the defendant that he had “two years from today‘s date to seek post-conviction relief.” (Emphasis added). Pursuant to
Accordingly, we vacate the defendant‘s sentence and we remand to the trial court for further proceedings, reserving the defendant‘s right to withdraw his guilty plea.
SENTENCE VACATED; CASE REMANDED.