95-377 La.App. 3 Cir. 11/8/95, State v. Wright
| Decision Date | 08 November 1995 |
| Citation | 664 So.2d 712 |
| Parties | 95-377 La.App. 3 Cir |
| Court | Court of Appeal of Louisiana — District of US |
Sheryl Lynn Laing, Charles F. Wagner, Dist. Atty., for State of Louisiana.
Charles Joseph Yeager, for Ruble Tendle Wright III.
Before THIBODEAUX and WOODARD, JJ., and KNIGHT *, J. Pro Tem.
[95-377 La.App. 3 Cir. 1] WILLIAM N. KNIGHT, Judge Pro Tem.
Defendant pled guilty to distribution of a controlled substance in a school zone, a violation of La.R.S. 40:966(A) and La.R.S. 40:981.3 and was sentenced to five years at hard labor to run concurrent with docket number 236,542. The sentence was suspended on the condition that defendant serve five years on probation and that defendant serve one year in the parish jail, subject to work release. The state appeals defendant's sentence. Finding error on the part of the trial court, we vacate defendant's sentence and remand for resentencing.
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 [95-377 La.App. 3 Cir. 2] distribution of a controlled dangerous substance in a school zone in violation of La.R.S. 40:981.3. Subsequently, in open court, the state amended the bill to include the statutory citation, La.R.S. 40:966(A), for distribution of a controlled dangerous substance, schedule I--marijuana. On February 2, 1995, pursuant to a plea agreement, the defendant withdrew his former plea of not guilty and entered a guilty plea as charged. According to the plea agreement, the state agreed to dismiss all additional charges, and defendant agreed to dismiss his appeal in a separate criminal proceeding in docket number 236,542. Before accepting defendant's plea of guilty, the trial court fully Boykinized the defendant and informed him of the possible penalties. The trial court then sentenced the defendant to five (5) years at hard labor to run concurrent with defendant's sentence in docket number 236,542. The sentence was suspended on the condition that defendant serve five (5) years on probation and one (1) year in the parish jail, subject to work release. Defendant was also ordered to abide by all the conditions set forth in La.Code Crim.P. art. 895 during the probationary period. At that point, the state made an oral motion to reconsider sentence which was denied by the trial court. Also, the state orally moved to appeal the sentence.
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 La.Code Crim.P. art. 914, as here, does not divest the trial court of jurisdiction and vest it in the Court of Appeal.
[95-377 La.App. 3 Cir. 3] However, State v. Creel was rendered pursuant to old La.Code Crim.P. art. 915 which provided:
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 amended came into effect on September 9, 1988. Now Article 915 reads as follows:
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 [95-377 La.App. 3 Cir. 4] 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 La.Code Crim.P. art. 914. Therefore, we find that the state's appeal is properly before this court, the trial court was divested of its jurisdiction and jurisdiction now vests with this court. See La.Code Crim.P. art. 916. Thus, defendant's contention is without merit.
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. La.Code Crim.P. art. 914.1 provides, in pertinent part, that:
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.
* * * * * *
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 La.R.S. 40:981.3 and imposition of an illegal sentence. In the case sub judice, defendant designated as part of the record a transcript of a hearing on a motion to quash held on November 29, 1994 and the testimony of witnesses at a hearing on another motion to quash held on February 2, 1995. Defendant's designation of the record was ordered filed and granted on June 20, 1995, well [95-377 La.App. 3 Cir. 5] beyond five (5) days after the appeal was granted. See La.Code Crim.P. art. 914.1(A). However, in the interest of judicial economy, we will accept defendant's designation of the record. Further, the record submitted with this appeal is sufficient for a full and fair review of the state's assignment of error. Therefore, defendant's contention is without merit.
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 La.R.S. 40:981.3 as to allowing a sentence less than fifteen years without the benefit of probation, parole, or suspension of sentence.
Defendant, on the other hand, contends La.R.S. 40:981.3 is an enhancement statute like La.R.S. 15:529.1, and a trial judge, pursuant to State v. Dorthey, 623 So.2d 1276 (La.1993), could determine that the mandatory minimum sentence imposed under La.R.S. 40:981.3 is constitutionally excessive.
In the case sub judice, the trial court, believing it had the discretion to impose a sentence either under La.R.S. 40:981.3 or La.R.S. 40:966, imposed a five (5) year suspended sentence under La.R.S. 40:966, which was also in accordance with an apparent plea bargain agreement.
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 La.R.S. 15:529.1 violate the constitutionally-required separation of powers between the judicial and legislative branches. The supreme [95-377 La.App. 3 Cir. 6] court also addressed the constitutional excessiveness of the sentence imposed under the Habitual Offender Statute noting that if the trial court found the minimum sentence under La.R.S. 15:529.1 to be unconstitutionally excessive then the trial court could impose a sentence below the minimum. In addressing the separation of powers claim the supreme court stated:
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...
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