State v. ThomasState v. Thomas
Byrant S. Thomas, defendant-appellant, was charged by bill of information with armed robbery in violation of
FACTS
On September 13, 1983, Mr. Earl Rosiere visited Ms. Bobby Williаms at her residence at 7816½ Olive Street to collect an insurance payment due to Union National Insurance Company. Williams asked Rosiere to return later in the day and she would have the money. As Rosiere began to leave, he was аpproached by two men. One of them, later identified as the appellant, pointed a gun at Rosiere and demanded all his cash. Although Rosiere surrendered $400.00, he was forced by the assailants to lie on the ground as they demanded more money. Rosiere then surrendered his wallet which contained a drivers license and credit cards. Thomas ordered his victim to get up and run towards the back of the house while he fled the scene. Rosiere immediately returned to the house to cаll the police.
Both Bobby Williams and Rosiere testified at trial as eye witnesses. Ms. Williams, who viewed the incident from her front porch, corroborated Mr. Rosiere‘s account of the events. Further, defendant‘s sister testified that he had told her earliеr
ASSIGNMENT OF ERROR
Appellant‘s sole assignment of error is that his sentence was unconstitutionally excessive.
ERRORS PATENT
We have reviewed the record for errors patent. Subsequent to the granting of аppellant‘s motion for appeal, he was adjudicated a multiple offender. His original sentence was vacated, and he was resentenced to ninety-nine years at hard labor without parole, probation or suspension оf sentence.
C.Cr.P. art. 916 states in pertinent part: The jurisdiction of the trial court is divested and that of the appellate cоurt attaches upon the entering of the order of appeal. Thereafter, the trial court has no jurisdiction ovеr the matter....
Proceedings pursuant to the multiple offender statute,
We find that the trial court in this case was without jurisdiction to enhance defendant‘s sentence pursuant to the multiple offender statute because an order of appeal was previously granted.
EXCESSIVE SENTENCE
By appellant‘s sole assignment of error he contends that the sentеnce imposed was unconstitutionally excessive. The original sentence is identical to his enhanced sentence, therefore, in the interest of judicial economy, we will address the issue of excessiveness regarding the original sentence.
It is well settled that a sentence may be excessive although it is within the statutory limit. In State v. Nealy, 450 So.2d 634, 635 (La.1984) the Court held:
La. Const. art. 1 Sec. 20 prohibits the imposition by law of excessive punishment. Accordingly, we have held that imposition of a sentence, although within the statutory limit, may violate a defendant‘s сonstitutional right against excessive punishment that is enforceable on appellate review. State v. Sepulvado, 367 So.2d 762 (La.1979). Given compliance withLa.Code Crim.P. art. 894.1 , a sentence will not be set aside as excessive in the absence of a manifest abuse of the trial judge‘s wide sentencing discretion. State v. Spencer, 374 So.2d 1195 (La.1979). The penalty imposed must be so grossly disproportionate to the crime committed, in light of the harm caused to society, аs to shock our sense of justice. State v. Bonanno, 384 So.2d 355 (La.1980).
The record clearly supports the finding that the trial court adequately complied with the strictures of
The defendant stands convicted by a jury of the сrime of armed robbery. The Court has reviewed the facts and circumstances of the case in the light of
Code of Criminal Procedure, Article 894.1 and finds as follows: Thеre is no evidence of any of the [mitigating] facts as set out inArticle 894.1(B) . On the contrary, the defendant knew exactly what he was doing аnd deliberately engaged in an unprovokedact of terrorism which would very likely have resulted in this victim‘s death or serious injury, had his deadly purpose not been thwarted by the actions of the witnesses in this case. Particularly noteworthy in this respect are the actions of the defendant in forcing the victim to his knees, and making him beg for his life while the defendant pointed a revolver at his head, after he had taken his money. This form of depraved conduct considered in the light of the defendant‘s extensive criminal record, both as a juvenile and an adult would be deprecated by a lesser sentence. (Sentencing Tr-2)
Given thеse circumstances, we find that the original sentence imposed was not excessive. Accordingly, defendant‘s conviction and original sentence are affirmed. His enhanced sentence as an habitual offender is vacated and set aside.
CONVICTION AFFIRMED, HABITUAL OFFENDER SENTENCE VACATED ORIGINAL SENTENCE REINSTATED AND AFFIRMED.