State v. TurnerState v. Turner
Thе defendant, Leonard Turner, was charged by bill of information with armed robbery in violation of
For the armed robbery conviction, the trial judge sentenced the defendant to thirty-three and one-third years at hard labor without benefit of parole, probation or suspension of sentence. For the possession of a firearm by a convicted felon conviction, the trial judge sentenced the defendant to ten years at hard labor. The defendant received credit for time served on both counts and wаs ordered to serve these two sentences consecutively.
On June 15, 1984, the trial judge noted that the original sentence was illegal in that the mandаtory fine for the 14:95.1 conviction was not imposed in addition to the jail term. Therefore, the trial judge amended the original sentence to includе a $1,000 fine or one year at hard labor in default thereof. On May 2, 1985, the trial judge resentenced the defendant as a multiple offender under
On February 14, 1984 at approximately 9:45 a.m., Huron Bordelon was sitting in his truck after сollecting an insurance payment in the 2200 block of Second Street in New Orleans. At that time, the defendant approached Bordelon with a gun and demanded Bordelon’s money. Bordelon surrendered his wallet, keys and $525.00 to the defendant who then fled the scene. The police arrived shоrtly thereafter and were unable to locate the defendant. On April 4, 1984, Bordelon spotted the defendant outside of a lounge on First and Dryadеs Streets. By the time the police arrived, the defendant was no longer outside of the lounge. The defendant later emerged from the lounge аnd was identified to the police by Bordelon as the man who had robbed him at gunpoint on February 14, 1984. The police placed the defendant undеr arrest for the armed robbery and a subsequent frisk of the defendant revealed that he was in the possession of a gun. Because a computer check revealed that the defendant was a convicted felon, he was also charged with being a convicted felon in possеssion of a firearm.
The defendant was also positively identified by Bordelon at trial. Defendant denies committing the armed robbery.
A review of the record for errors patent reveals that the trial judge erred in sentencing the defendant to a $1,000 fine or one year at hard labor in default thereof on his 14:95.1 conviction in addition to the original ten years at hard labor sentence. An indigent defendant cannot be given a term of imprisonment in lieu of a fine when to do so would mean that the defendant would have a term of imprisonment longer than the statutory maximum. State v. Williams,
The record also reveals that the trial judge erred in resentencing the defendant as a multiple offender after an order for appeal hаd already been entered by the defendant. The appeal order was entered on June 6, 1984 and the resentencing took place оn May 2, 1985.
Therefore, we vacate both the original and enhanced sentences given to the defendant. This ease is remanded to the trial court for resentencing with instructions that the defendant’s indigency is nоt to subject him to imprisonment beyond the maximum sentence stated in
Both of defendant’s convictions are affirmed.
CONVICTIONS AFFIRMED
SENTENCES VACATED
CASE REMANDED FOR RESENTENC-ING
Notes
.
A. Armed robbery is the taking of anything of value belonging tо another from the person of another or that is in the immediate control of another, by use of force or intimidation, while armed with a dangerous weapon.
B. Whoever commits the crime of armed robbery shall be imprisoned at hard labor for not less than five years and for not more than ninety-nine years, without benefit of parole, probation or suspension of sentence.
.
A. It is unlawful for any person who has been convicted of first or second degree murder, manslaughter, aggravated battery, aggravated or simple rape, aggravated kidnapping, aggravаted arson, aggravated or simple burglary, armed or simple robbery, burglary of a pharmacy, burlgary of an inhabited dwelling, or any violation of the Uniform Controlled Dangerous Substances Law which is a felony or crime defined as an attempt to commit one of the above enumerated offenses under the laws of this state, or who has been convicted under the laws of any other state or of the United States or of any foreign govеrnment or country of a crime which if committed in this state, would be one of the above enumerated crimes, to possess a firearm or cаrry a concealed weapon.
B. Whoever is found guilty of violating the provisions of this Section shall be imprisoned at hard labor for not less than three nor more than ten years without benefit of probation, parole, or suspension of sentence and be fined not less than one thousand dollars nor more than five thousand dollars.
. LSA-C.Cr.P. art. 916 states:
The jurisdiction of the trial court is divested and that of the appellate court attaches upon the entering of the order of appeal. Thereafter, the trial court has no jurisdiction over the matter except to either:
(1) Extеnd the return day of the appeal, the time for filing assignments of error, or the time for filing per curiam comments in accordance with Articles 844 and 919.
(2) Correct an error or deficiency in the record.
(3) Correct an illegal sentence or reduce a legal sentence in accordance with Article 913(B).
(4) Take all action conсerning bail permitted by Title VIII.
(5) Receive assignments of error and add per curiam comments.
(6) Render an interlocutory order or a definitive judgment concerning a ministerial matter not in controversy on appeal.
(7) Impose the penalty provided by Article 844.