State v. VictorianState v. Victorian
The defendant, Davis J. Victorian, was charged by bill of information with illegal use of a weapon, a violation of
On February 17, 1982, in Lake Charles, Louisiana, a truck driven by Earl LaVergne pulled out in front of the defendant‘s vehicle which was traveling east on Highway 90. The defendant pulled over in the left lane and applied his brakes to avoid hitting the LaVergne vehicle. Both parties exchanged obscene gestures and drove in close proximity of each other as they proceeded up the I-10 bridge. As the LaVergne vehicle attempted to pass, the defendant picked up a .22 pistol and fired out of his window five times, striking the LaVergne vehicle in the right front fender each time.
The defendant was initially charged with violating
“A. Illegal use of weapons or dangerous instrumentalities is the intentional or criminally negligent discharging of any firearm, or the throwing, placing, or other use of any article, liquid, or substance, where it is foreseeable that it may result in death or great bodily harm to a human being.
B. Whoever commits the crime of illegal use of weapons or dangerous instrumentalities shall be fined not more than one thousand dollars, or imprisoned with or without hard labor for not more than two years, or both.”
Upon accepting the defendant‘s plea, the trial court informed the defendant that the maximum penalty for illegal use of a weapon was a $1000 fine or two years with or without hard labor, or both. At sentencing, the court told the defendant it felt compelled to invoke
“When the court makes a finding that a firearm was used in the commission of a felony and when suspension of sentence is not otherwise prohibited, the court shall impose a sentence which is not less than:
(1) The maximum sentence provided by law, in the same manner as provided in the offense, if the maximum sentence is less than five years, or
(2) Five years, in the same manner as provided in the offense, if the maximum sentence is five years or more.
Imposition or execution of sentence shall not be suspended and the offender shall not be eligible for probation or parole.”
ENHANCED PENALTIES
Criminal and penal laws are to be strictly construed and in the absence of an express legislative intent, any doubt should be resolved in favor of lenity, and not so as to multiply the penalty imposed upon the defendant. State v. Cox, 344 So.2d 1024 (La. 1977).
The question raised by the defendant is res nova under
State v. Sanders, 337 So.2d 1131 (La. 1976) addressed the issue of whether the State may multiple-bill a person under the habitual offender statute, who was convicted under
“Consequently, we find that the penalty provisions enacted in
R.S. 14:95.1 were intended by the legislature to delimit the permissible punishment for that offense because the statute itself takes into account the fact of defendant‘s previous felony conviction and the legislature gave no indication that it wanted the multiple-billing procedure to remain available as a vehicle for further enlargement of the penalty.” (Emphasis added)
The Supreme Court treated a similar issue in State v. Cox, supra, in determining whether the State may employ a conviction of simple escape in seeking to have a person declared an habitual offender. In Cox, the Court relied on Sanders, supra, and stated:
“... The escape statute itself causes an enhancement of penalty by requiring consecutive sentences because of a defendant‘s previous felony conviction. Although the legislature chose to make the enhancement to a felony dependent upon a defendant‘s escape from the Department of Corrections instead of relating the enhancement directly to his previous commission of a felony, we see no real difference because only convicted felons may be sentenced to the Department of Corrections.”
Thus, it is apparent that enhanced penalties cannot be applied to offenses that contain the same elements as in the enhanced penalty. This is consistent with federal jurisprudence on this issue. See Simpson v. United States, 435 U.S. 6, 98 S.Ct. 909, 55 L.Ed.2d 70 (1978), and Busic v. United States, 446 U.S. 398, 100 S.Ct. 1747, 64 L.Ed.2d 381 (1980).
The present case presents a good example of when
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“C. On a second conviction, the offender shall be imprisoned with or without hard labor for not more than five years.
D. On a third and subsequent convictions, the offender shall be imprisoned
with or without hard labor for not more than five years. E. The enhanced penalty upon second, third, and subsequent convictions provided for in this Section shall not be applicable in cases where more than five years have elapsed since the expiration of the maximum sentence, or sentences, of the previous conviction or convictions, and the time of the commission of the last offense for which he has been convicted; the sentence to be imposed in such event shall be the same as may be imposed upon a first conviction.”
The elements of the offense of illegal use of a weapon are the same as required in the enhanced penalty provision of
We further find that the enhanced penalty provided under
DECREE
The defendant‘s conviction is affirmed. The defendant‘s sentence is vacated and set aside, and the case is remanded to the district court for re-sentencing consistent with the views expressed above.
REMANDED FOR RE-SENTENCING.
YELVERTON, J., dissents.
ON REHEARING
YELVERTON, Judge.
The issue is whether
The facts of the case are correctly stated in the original opinion. Briefly repeated, defendant, using a .22 pistol, shot five times into the body of a passing vehicle. He pleaded guilty to a violation of
The original opinion erroneously decided that this amounted to a prohibited double enhancement of the penalty and that
We reach this conclusion because we find, for the reasons which follow, that (1) this conclusion comports with Legislative intent, and (2) there results no double enhancement of penalty.
Legislative Intent
The conditions for application of
“When the court makes a finding that a firearm was used in the commission of a felony and when suspension of sentence is not otherwise prohibited....”
The purpose of the article is to enhance penalties for gun-using felonies. The enhancement includes a prohibition against suspension of sentence. The Legislature obviously does not want gun-using felons to get suspended sentences. However, the Legislature is content to let the gun-using felon escape the enhancement of
The significance of the italicized language in the application of the article is indicated by the number of times in our law when suspension of sentence will be found to be “otherwise prohibited.” By means of
Care was taken by the lawmakers to assure that no gun-using felony would remain subject to a suspended sentence.
Suspension of sentence for a violation of
If
In our opinion it was the intent of the Legislature that
Double Enhancement?
We next consider the argument that the application of
In our opinion the statutes under consideration do not present a case of double enhancement. Arguing that it does, the defendant relies on State v. Sanders, 337 So.2d 1131 (La.1976), and State v. Cox, 344 So.2d 1024 (La.1977). Unlike those cases, the instant case does not involve one enhancement on top of another enhancement. The penalty imposed for using a firearm under
The same difference exists in Simpson v. United States, 435 U.S. 6, 98 S.Ct. 909, 55 L.Ed.2d 70 (1978), and Busic v. United States, 446 U.S. 398, 100 S.Ct. 1747, 64 L.Ed.2d 381 (1980) likewise relied on by defendant. In those cases multiple, consecutive sentences were given in response to two enhancement provisions applicable to a single criminal transaction. Our case differs additionally from the federal cases in that our predicate statute,
Although
The above observations answer the contention that the application of
In the context of the present problem we are concerned only with the enhancement for a first offense violation. We are not concerned with the enhancement provisions for repeat violations contained in
Our question is simply whether the penalty for a first offense is subject to the sentencing limitations of
Defendant makes the additional argument that double jeopardy applies. We dispose of this contention summarily pointing out, as previously observed, that in the instant case there was but one crime, one conviction, and one sentence.
Defendant‘s final assignment of error is the due process contention that he was not given notice of the court‘s intent to impose the enhanced penalty. The record indicates that the provisions of
For the foregoing reasons, we find that there was no error committed by the trial court in these proceedings. Both the conviction and sentence, therefore, are affirmed.
AFFIRMED.
KNOLL, J., dissents; see reasons.
I respectfully dissent for reasons expressed in the original opinion.