State v. WarnerState v. Warner
Lead Opinion
Grеgory Warner was charged by bill of information with possession of stolen things, a violation of
Defendant has appealed. In connection with his conviction for possession of stolen things, he assigns as error a request that the conviction be reversed due to patent error. Such a request is unnecessary as this Court routinely reviews all appeal records fоr the existence of patent error. See LSA-C.Cr.P. art. 920(2). On appeal, defendant
In a pro se brief filed with this court, defendant attacks the sufficiency of the evidence and advances a variety of arguments relating to the effectiveness of his trial counsel. For the following reasons, we refuse to consider these pro se arguments. Although defendant asked the trial court to allow him to represent himself on аppeal, the court denied the request after a hearing and appointed counsel to represent defendant on appeal. Defendant’s applications seeking review of the trial court’s denial of his motion for self-representation were denied. State v. Warner, 594 |aSo.2d 397 (La.App. 1st Cir. 1991), writs denied,
ADJUDICATION AS HABITUAL OFFENDER
In this assignment of error, defendаnt claims the court erred when it adjudicated him as a second felony habitual offender. Defendant claims the five year cleansing period provided by
The habitual offender statute contains a five year cleansing period:
This Section shall not be applicable in eases 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 felony for which he has been convicted. In computing the period of time as provided herein, any period of servitude by a person in a penal institution, within or without the state, shall not be included in the computation of any of said five year periods.
At the hearing, the state introduced records from the Twenty-Second Judicial District Court which showed that, on October 29, 1980, “Kent Warner” pled guilty to theft of an item valued at more |4than $100 and less than $500. This was the offense listed in the habitual offender bill as being the predicate felony. The state also introduced a copy of defendant’s records from the Louisiana Department of Public Safety and Corrections, commonly referred to as a “pen pack.” On appeal, defendant concedes that, although various names for the defendant are listed in the documents contained in the pen pack, the state’s fingerprint expert established that the records relate to defendant. A document in the pen pack shows that defendant was discharged from state custody on the theft conviction on August 4, 1982.
Documents contained in the pen pack also reveal that, on August 19, 1987, defendant pled guilty in the Twenty-Second Judicial District Court to unauthorized use of а movable valued over $1000. The offense occurred
The state also introduced the testimony of John Sumrall, a Bogalusa City Police Officer, who was asked by the state to interpret defendant’s rap sheet which was included in the pen pack. According to Sumrall’s testimony, defendant was placed on probation for other offenses after his discharge on the predicate felony on at least two occasions prior to commission of the instant offense. Sumrall testified that defendant was “placed on probation” on January 16, 1984, the probation “began” on February 3, 1984, and the probation was “closed out” on November 21, 1985. Sumrall | ¡¡further testified that defendant was “placed” on probation on August 19, 1987, the probation “began” July 6,1987, and the probation “ended” August 19, 1989 with revocation. Sumrall also testified that аt some point defendant received a seven year sentence from which he was discharged on May 10,1989. Sumrall indicated the date for this sentence was not on the rap sheet.
At the conclusion of the habitual offender hearing, dеfense counsel claimed the issue was whether or not defendant was out of jail for a cumulative five year period between his discharge on the predicate felony conviction (August 4, 1982) and the commission of the instant offense (July 3, 1990). In rеsponse, the state claimed it had established numerous periods of incarcerations during that time period and, because defendant did not make it through an entire five year period without being incarcerated, the five year cleansing period provision did not apply. After reviewing post-hearing memoranda on the issue, the trial court adjudicated defendant to be a second felony offender. In written reasons, the court concluded that the 1987 intervening felony conviction “interrupted” the five year cleansing period. Because an uninterrupted five year period did not elapse between August 4, 1982 and July 3, 1990, the court concluded that the cleansing period provision did not apply. Defendant objected to this ruling by the court.
The threshold issue which must be resolved is whether the cleansing period provisions of
After reviewing the language of Subsection (C) and reading it in context with the entirety of
The drafters оf the habitual offender statute viewed the five year cleansing period as applying only when a defendant managed to live five years without having any felony convictions. See Bennett, The Work of the Louisiana Supreme Court for the 1947-1948 Term — Criminаl Law and Procedure, 9 La. L.Rev. 247, 271-72 (1949); Wilson, The Louisiana Criminal Code — Making the Punishment Fit the Criminal, 5 La.L.Rev. 53, 61-62 (1942). See also State v. Anderson,
Therefore, because less than five years elapsed between defendant’s discharge on the predicate felony conviction (August 4, 1982) and his сommission of the intervening felony (July 6,1987), and less than five years also elapsed between defendant’s discharge on the intervening felony conviction (May 10, 1989) and his commission of the instant offense (July 3, 1990), the five year ^cleansing period did not prohibit defendant’s adjudication as a second felony offender based on his 1980 conviction. This assignment of error is without merit.
HABITUAL OFFENDER ADJUDICATION AND SENTENCE AFFIRMED;
Notes
. In his pro se briefs, defendant appears to confuse this 1987 St. Tammany Parish conviction with a different conviction from Orleans Pаrish for unauthorized use of a movable valued over $1000. According to defendant, the Orleans Parish conviction was reduced to a misdemeanor by the appellate court and should not have been considered by the trial court in thе instant habitual offender proceeding. See State v. Warner,
. Sumrall indicated that his review was limited to the rap sheet. Our review of the pen pack reveals that some of the dates mentioned by Sumrall are confusing and are not supported by other documеnts contained in the pen pack. For example, Sumrall testified that defendant's probation for one of the offenses ended with revocation on August 19, 1989. However, records contained in the pen pack show the probation was revoked at an earlier date and defendant was discharged on that offense on May 10, 1989.
Dissenting Opinion
dissents since it is my opinion that the phrase “the previous conviction, or convictions” refers only to a constitutionally valid felony conviction which is being used as a predicate to secure a habitual offender adjudication.