State v. WrightState v. Wright
Defendant pled guilty to distribution of a controlled substance in a school zone, a violation of
FACTS
On December 9, 1993, defendant, Ruble Tendle Wright, allegedly distributed marijuana on property used for school purposes by Alexandria Senior High School. On January 5, 1994, a bill of information was filed charging the defendant with distribution of a controlled dangerous substance in a school zone in violation of
PROCEDURAL ISSUES
Defendant filed with this court a motion to dismiss the appeal, wherein he claims this court does not have jurisdiction over the appeal because the appeal is not properly before this court. Specifically, defendant argues that under State v. Creel, 450 So.2d 651 (La.1984), the absence of a properly issued order of appeal, even if a motion for appeal is timely filed orally or in writing under
However, State v. Creel was rendered pursuant to old
A. When a motion for an appeal is made in conformity with Articles 912 and 914, the court shall order an appeal and set the return date in the order. When a motion for an appeal has been timely filed, the appeal shall not be affected by any fault or omission on the part of the trial court. (Emphasis ours).
The emphasized part of old Article 915 was deleted when Article 915 was amended by Acts 1988, Number 525 § 1. The Article as
A. When a motion for an appeal is made in conformity with Articles 912, 914, and 914.1 the trial court shall grant or deny the motion within seventy-two hours, exclusive of legal holidays, after the motion is made. The return date shall be sixty days from the date the motion for appeal is granted, unless the trial judge fixes a lesser period. When a motion for an appeal has been timely made, the appeal shall not be affected by any fault or omission on the part of the trial court. (Emphasis ours).
We find that by amending Article 915 the legislature gave the trial court the discretion of either granting or denying an appeal. The legislature changed the language from ”the trial court shall order an appeal and set the return date in the order” to ”the trial court shall grant or deny the motion within seventy-two hours ... after the motion is made.” The trial court, in the present case, used its discretion to grant the appeal.
In the case sub judice, the state orally moved for an appeal. The trial court stated, “You may—may consider it timely, but I think you want it in writing.” The minute entry for the plea and sentence reflects that the “Court grants states [sic] motion for appeal.” Defendant asserts that the comments in the transcript of the plea and sentencing contradicts the minute entry and thus, the transcript prevails. However, we find that the trial court comments should be construed that an appeal, although an oral one, had been granted. Also, the record contains a notice of appeal which states the state made an oral request for an appeal on February 2, 1995. An order granting the appeal was entered on February 2, 1995 from the judgment on the same day and made returnable to this court “according to law.” An oral motion for appeal is sufficient, there is no requirement that it be in writing. See
Defendant also contends the state failed to designate the record for appeal, therefore, denying him the right of cross-designation of the record for judicial review based on a complete record of all evidence upon which the judgment is based.
A. The party making the motion for appeal shall, at the time the motion is made, request the transcript of that portion of the proceedings necessary, in light of the assignment of errors to be urged. Not later than five days after the motion, the opposing party may designate in writing the transcript of that portion or portions of the proceedings necessary to oppose the appeal.
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D. The trial court or the appellate court may designate additional portions of the transcript of the proceedings which it feels are necessary for full and fair review of the assignment of error.
Even though the state did not designate the transcripts necessary for review of its assignment of error, we find that defendant could have designated that portion of the record he felt would be necessary to oppose the state‘s appeal of the trial court‘s interpretation of
Accordingly, we conclude that defendant‘s motion to dismiss the appeal should be denied.
The state argues that the trial court erred in its interpretation of the sentencing provisions of
Defendant, on the other hand, contends
In the case sub judice, the trial court, believing it had the discretion to impose a sentence either under
Therefore, the first question is whether the statute under which defendant was convicted was a substantive statute or an enhancement statute.
In Dorthey, 623 So.2d 1276, the Louisiana Supreme Court was confronted with the question of whether the Habitual Offender Statute and its penalties dictated by the Legislature pursuant to
It is a well established principle that the determination and definition of acts which are punishable as crimes is purely a legislative function. State v. Taylor, 479 So.2d 339 (La.1985);
LSA-R.S. 14.7 [sic] . It is the Legislature‘s prerogative to determine the length of the sentence imposed for crimes classified as felonies. State v. Prestridge, 399 So.2d 564 (La.1981); State v. Hudson, 442 So.2d 735 (La.App. 1st Cir. 1983). Moreover, courts are charged with applying these punishments unless they are found to be unconstitutional. State v. Stetson, 317 So.2d 172 (La.1975).
The supreme court in Dorthey also stated:
Under Louisiana‘s Habitual Offender law a bill of information alleging that a defendant is a recidivist does not charge a new crime but merely advises the trial court of circumstances, and seeks enhanced punishment following a defendant‘s most recent conviction. “The enhancement of the penalty for habitual offenders convicted of a new felony only addresses itself to the sentencing powers of the trial judge after conviction and has no functional relationship to the innocence or guilt of the instant crime.” State v. Walker, 416 So.2d 534, 536 (La.1982); State v. Hayes, 412 So.2d 1323 (La.1982); State v. Stott, 395 So.2d 714 (La.1981). Thus, a ruling at a multiple offender hearing is not “a definitive judgment” but merely “a ‘finding’ ancillary to the imposition of sentence.” State v. Stott, supra.
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In essence, based on our understanding of the traditional role of the district attorney in criminal prosecution and the power of the Legislature to vest him with discretionary functions pertaining to criminal prosecution at the initial and subsequent stages of prosecution, we conclude that the provisions of
15:529.1 do not violate Louisiana‘s constitutional separation of powers. By imposing certain habitual offender statuses [sic] and corresponding penalties, the Legislature has merely established a procedure which enables a district attorney to seek and the courts to exact more severe sentences on defendants who repeatedly violate the criminal laws. The Legislature has acted within its constitutional authority which allows it to determine and define a crime and provide its penalty. It has not delegated any of its duties to the judicial or executive branches, nor has it usurped the judiciary‘s discretion in sentencing a defendant. Accordingly, no separation of powers violation exists. Consequently, thejudgment of the district court, holding R.S. 15:529.1 unconstitutional, will be reversed.
Dorthey, 623 So.2d at 1278-1280.
In State v. Hebert, 94-2223 (La.App. 4 Cir. 3/16/95), 652 So.2d 1049, the fourth circuit, finding a trial court cannot use the considerations of Dorthey to suspend the execution of a jail sentence where suspension of a sentence is prohibited by law or to impose a sentence below the minimum sentence permitted under the substantive offense, stated:
The case before us is distinguishable from Dorthey. Dorthey was specifically limited to an enhanced sentence under the habitual offender statute and not a mandatory minimum sentence imposed by a substantive criminal statute, as in the instant case. There is nothing in the Dorthey holding that authorizes a trial court to disregard the legislatively mandated sentencing provisions of a substantive, unenhanced criminal statute and we do not interpret Dorthey as authority to ignore the legislative mandate of
La.R.S. 40:966(C)(1) .The trial judge, by imposing a suspended sentence where suspension of a sentence is expressly prohibited by the statute, in effect, assumed a function reserved to the legislature. Such being the case, we find a trial court cannot use the considerations of Dorthey to suspend the execution of a jail sentence where suspension of a sentence is prohibited by law or to impose a sentence that is below the minimum sentence permitted under the substantive offense. To conclude otherwise would give trial judges the broad discretion to ignore the mandatory minimum sentencing provisions of all criminal statutes.
In the present case,
In determining
Upon finding
The penalty for distribution of a controlled dangerous substance in a school zone,
On a first conviction, whoever violates a provision of this Section shall be punished by the imposition of the maximum fine and not less than one-half nor more than the maximum term of imprisonment authorized by the applicable provisions of R.S. 40:966 through R.S. 40:970, with the minimum mandatory term of imprisonment being served without benefit of parole, probation, or suspension of sentence, provided in no case shall the term of imprisonment be less than the minimum term provided in R.S. 40:966 through R.S. 40:970.
However, defendant filed with this court a motion to remand for a sentencing hearing and to set aside the guilty plea and conviction. Defendant later narrowed his motion asking for a remand to hold a hearing on the issue of rescinding the plea bargain due to fraudulent misrepresentation and violation of due process. Defendant‘s main claim is that a stipulated sentence was agreed to and the state breached the plea bargain by not basing the appeal on a Dorthey review. We find that there is nothing in the record indicating the appeal was based on a Dorthey review.
At the close of the hearing on several motions filed by defendant, defendant‘s counsel addressed the trial court stating that defendant and the state reached a plea agreement. The state affirmed there was an agreement. The guilty plea form indicates as part of the plea agreement defendant would receive a sentence of five (5) years at hard labor; the sentence would be suspended and defendant placed on five (5) years probation and serve one (1) year in the parish jail subject to work release; the sentence would run concurrent to the sentence received in docket number 236,542; while on probation defendant would abide by
We find that defendant‘s guilty plea was based upon receiving a stipulated sentence because (1) on defendant‘s “Plea Of Guilty And Waiver Of Rights” form, defendant specifically stated that no promises were made to him in return for his guilty plea except “5 years LDOC suspended, 5 years probation, 1 year parish jail, Art. 895, sentence to be concurrent with 236,542 (Unauthorized Use); costs, restitution in docket no. 236,546 in the amount of $2197.41; No. 238,590 and 236,546 dismissed; subject to work.“; and (2) the trial court sentenced defendant according to the promises that were made to him.
As noted earlier, the sentence is illegally lenient even though the sentence was imposed in accordance with a plea agreement. We find that the reconciliation with the plea agreement and defendant‘s illegally lenient sentence is impossible. As such, defendant‘s sentence is vacated, and we remand this case for resentencing. Finally, defendant must be given an opportunity to withdraw his guilty plea. See State v. Cabanas, 552 So.2d 1040 (La.App. 1 Cir.1989).
CONCLUSION
For the foregoing reasons, we vacate defendant‘s sentence and remand for resentencing. Further, defendant must be given an opportunity to withdraw his guilty plea.
SENTENCE VACATED AND REMANDED WITH INSTRUCTIONS.
THIBODEAUX, J., concurs in part, dissents in part and assigns reasons.
This appeal by the State of Louisiana should be dismissed. However, to the extent that the majority opinion considers
State v. Bell, 412 So.2d 1335 (La.1982) bars a defendant from seeking review of a sentence imposed in conformity with a plea agreement which was set forth in the record at the time of the plea. State v. Bell concerned itself with the appeal of a legal sentence on the basis of excessiveness after a plea bargain was entered into. In this case, the state argues that the defendant‘s sentence was illegally lenient. This reason is insufficient to distinguish this case from State v. Bell. Just as a defendant is barred from seeking review of an agreed upon sentence, the state is similarly prohibited from seeking review of a stipulated illegally lenient sentence. The defendant‘s guilty plea was in part based upon extracting a stipulated sentence from the state. The defendant‘s guilty plea form, in my view, clearly demonstrates this. The state should not have any rights greater than that of an individual.
Louisiana Revised Statute 40:981.3 is an enhancement statute, the predicate offense being
Furthermore, State v. Dorthey is not limited in its application to an enhancement statute. Dorthey “recognize[d] that the review of sentencing, including sentencing under R.S. 15:529.1, is a long established function of the judicial branch. Accordingly, Louisiana judiciary maintains the distinct responsibility of reviewing sentences imposed in criminal cases for constitutional excessiveness.” Id. at 1280. (emphasis supplied). Dorthey, by using the language “including sentencing under R.S. 15:529.1,” implies that a trial judge has the power and authority to review any sentence for constitutional excessiveness. To interpret Dorthey otherwise would render that language superfluous. The trial judge, pursuant to her powers under
The trial judge was eminently correct. The state‘s appeal should be dismissed. However, even if State v. Bell would not apply, then the two other alternative grounds explained above are sufficient to affirm the decision of the trial court.
For the foregoing reasons, I respectfully dissent.