State v. Uqdah

Feb 10, 1993
No. 92-KA-794
Reporters:
, ,
Before:
Kliebert
KLIEBERT, Chief Judge.

Defendant, Frank Uqdah, was charged by bill of information with simple robbery, a violation of LSA-R.S. 14:65. By unanimous verdict, a six person jury found him guilty as charged. Defendant was sentenced under the habitual offender law1 to eight and one-half years at hard labor. On appeal, he contends the sentence imposed is excessive and requests that we review the record for errors patent. For the following reasons, we vacate defendant’s sentence and remand for resentencing.

The maximum sentence which may be imposed under LSA-R.S. 14:65 is seven years or a fine of not more than $3,000.00, or both. However, pursuant to LSA-R.S. 15:529.1(A)(1), if defendant is found to be a habitual offender, the available sentencing range is enhanced from at least three and one-half years up to a maximum of fourteen years imprisonment. However, our review of the record in this matter reveals an error patent which mandates our vacating defendant’s sentence and remanding for resentencing.

The record does not contain a bill of information charging the defendant as a multiple offender. A habitual offender bill of information does not charge a new crime but is only a method of increasing the punishment of second and subsequent felony offenses. State v. Walker, 416 So.2d 534, 536 (La.1982). In order to sentence defendant as a multiple offender under the Habitual Offender Law, it is essential that former convictions be formally charged. State v. Hingle, 139 So.2d 205 (La.1962); State v. Donahue, 572 So.2d 255 (1st Cir.1990). Since there is no multiple offender bill of information, the prior conviction cannot be used to enhance the sentence for the present conviction. Because the sentence imposed of eight and one-half years is greater than the maximum sentence allowable for a first time offender, we must vacate his sentence and remand to the trial court for resentencing.

Accordingly, for the reasons assigned, defendant’s sentence is vacated and the matter remanded to the trial court for re-sentencing.

SENTENCE VACATED AND REMANDED.

Notes

. See LSA-R.S. 15:529.1.