State v. WhiteState v. White
- Reporters:
- ,
- Before:
- Caraway, Williams, Moore
Lucas Lorenzo White, a/k/a Robert Tyrone Williams, was charged by bill of information for armed robbery with the use of a firearm in violation of
Facts
On July 24, 2003, Crystal Meshell, a store clerk at Tobacco World III in Shreveport, Louisiana, was robbed at gun-point of severаl cartons of cigarettes. After the robbery, Shreveport Police officers interviewed witnesses, collected physical evidence and conducted an investigation. A store videotape of the robbery was released to the public and an anonymous tip to Crime Stoppers identified White as the robber. The store clerk also later identified White as the perpetrator of the armed robbery from a рhotographic lineup.
The jury found White guilty as charged and the state subsequently filed a habitual offender bill of information, charging him as a fourth felony habitual offender. The habitual offender bill listed four prior felony convictions and the instant conviction as White‘s fifth felony conviction and “at least” his fourth felony offense. White filed a motion to quash the habitual offender bill, arguing that his prosecution under the enhanced sentencing featurе of
At the habitual offender hearing, the trial court denied White‘s motion to quash, ruling in part that no double enhancement had occurred. Severаl post-trial motions were also denied. Thereafter, the state presented the testimony of a fingerprint expert in analysis and identification who affirmed that White‘s fingerprints were the same as those containеd on the bills of information for the four prior convictions listed in the habitual offender bill. The trial court took judicial notice of White‘s instant conviction, adjudicated him a fifth felony offender and sentenced him as notеd above. White now appeals urging three sentencing errors.
Discussion
Double Enhancement of Sentence
White first contends the trial court erred in denying his motion to quash the habitual offender bill. Specifically, White argues that the state‘s choice to enhanсe his penalty under
White correctly points out that courts have long held that habitual offender laws may not be used to further enhance penalties for the status crime of possession of a firearm by a cоnvicted felon under
Additionally, however, in State v. Murray, 357 So.2d 1121 (La.1978), our supreme court held:
By statute, the district attorney is accorded wide discretion in determining when and how he shall prosecute.
LSA-C.Cr.P. art. 61 . When more than one provision of the law apрlies, the district attorney has the discretion to elect which of the provisions to invoke. See, e.g.,LSA-R.S. 14:4 .We discern no reason why this discretion should not apply to the use of the multiple offender procedures as long as the same offense is not used twice to enhance the penalty. See State v. Cox, 344 So.2d 1024 (La.1977); State v. Sanders, 337 So.2d 1131 (La.1976).
In State v. Iverson, 37,369 (La.App. 2d Cir.9/24/03), 855 So.2d 835, writ denied, 03-2950 (La.5/14/04), 872 So.2d 510, this court discussed the concept of “double enhancement” in the context of the enhanced penalty provision of the Controlled Dаngerous Substance Law. Iverson held that the concept of double enhancement prohibits the use of an underlying crime and the subsequent status offense together in a multiple offender bill of information to enhance the penalty of another conviction. Because in that case, the defendant‘s first conviction for possession of a controlled dangerous substance (“CDS“) was used only once to support the status cоnviction and was not included in the chain of convictions used in the subsequent habitual offender proceeding, no double enhancement occurred and the trial court correctly denied the motion to quash thе multiple offender bill. The court cautioned, however, that the state‘s inclusion of the first offense CDS with the second offense CDS in the multiple offender bill would have resulted in impermissible double enhancement. See also State v. Harrison, 32,643 (La.App. 2d Cir.10/27/99), 743 So.2d 883,
In the instant case, White was convicted of armed robbery with the use of a firearm, violations of
Nevertheless, in connection with our review of this issue, we dо note an error patent not specifically raised by White which will require amendment of the sentence. After adjudicating White a fifth felony offender, the trial court imposed a life sentence without benefit of parole, probation or suspension of sentence. Additionally, the court imposed a consecutive sentence of five years without benefit of parole, probation or suspension of sentenсe after applying the enhancement provision of
Blakely Violation
By this assignment of error, White contends the Habitual Offender Law improperly allows the imposition of enhanced penaltiеs without the benefit of a jury‘s determination of the facts supporting the habitual offender adjudication. He argues that his adjudication and sentencing as an habitual offender violate the principles of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004).
White‘s chаllenge to the constitutionality of the Habitual Offender Law,
Conclusion
For the foregoing reasons, White‘s conviction and habitual offender adjudication are affirmed. The imposed sentence is amended to delete the consecutive five year term imposed by the trial court under
CONVICTION AND HABITUAL OFFENDER ADJUDICATION AFFIRMED. SENTENCE AMENDED TO DELETE FIVE-YEAR CONSECUTIVE SENTENCE AND AFFIRMED.
WILLIAMS, J., dissents in part and assigns written reasons.
WILLIAMS, J., dissenting in part.
With regard to the error patent review, I respectfully dissent from the majority opinion.
The majority has concluded that the dеfendant‘s habitual offender sentence “effectively replaced” his mandatory five-year sentence under the enhancement provision of
The majority has failed to provide any authority to support its conclusion that the five-year penalty is “replaced” by a habitual offender sentence. To the contrary, our courts have affirmed the district courts’ imposition of the five-year penalty in addition to a habitual offender sentence. State v. Williams, 34,369 (La.App. 2d Cir.2/28/01), 781 So.2d 673; State v. Lewis, XXXX-XXXX (La.App. 4th Cir.6/2/04), 876 So.2d 912, writ denied, XXXX-XXXX (La.11/24/04), 888 So.2d 229.
Consequently, I must conclude that the trial court was correct in sentencing this defendant to serve the mandatory five-year penalty in addition to sentencing him as a habitual offender. I would affirm the trial court‘s sentences.
I respectfully dissent.
Notes
LSA-R.S. 14:64 provides in part:
A. Armed robbery is the taking of anything of value belonging to 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.
LSA-R.S. 14:64.3 provides in part:
A. When the dangerous weapon used in the commission of the crime of armed robbery is a firearm, the offender shall be imprisоned for an additional period of five years without benefit of parole, probation or suspension of sentence. The additional penalty imposed pursuant to this Subsection shall be served consecutively to the sentence imposed under the provisions of R.S. 14:64.