State ex rel. Mims v. Butler

• Decision Date: 26 May 1992
• Docket Number: No. 88-KH-2816,88-KH-2816
• Citation: 601 So.2d 649
• Court: Louisiana Supreme Court
• Parties: STATE of Louisiana ex rel. Ira Joe MIMS v. Hilton BUTLER, Warden, Louisiana State Penitentiary.

Page 649

601 So.2d 649

STATE of Louisiana ex rel. Ira Joe MIMS v. Hilton BUTLER, Warden, Louisiana State Penitentiary.

No. 88-KH-2816.

Supreme Court of Louisiana.

May 26, 1992.

Elizabeth Cole and Terry E. Allbritton, Tulane Law Clinic, New Orleans, for plaintiff-applicant.

Richard Phillip Ieyoub, Atty. Gen., Paul J. Carmouche, Dist. Atty., and Catherine Estopinal, Asst. Dist. Atty., for defendant-respondent.

Lennie Francis Perez and Alton Tracy Moran, Baton Rouge, for Public Def. Off. 19th Judicial Dist. Court, amicus curiae.

Helen G. Berrigan, New Orleans, for Indigent Def. Bd. 24th Judicial Dist. Court, amicus curiae.

G. Paul Marx, Lafayette, for Public Def. Prog. 15th Judicial Dist. Court, amicus curiae.

John Michael Crochet and John Francis LaVern, Lake Charles, for Public Def. Prog. 14th Judicial Dist. Court and Public Def. Prog. 38th Judicial Dist. Court, amicus curiae.

Ellis Paul Adams, Jr., for Louisiana Dist. Attorney's Assn., amicus curiae.

Robert Stephen Glass, New Orleans, for LA Assn. Crim. Def. Lawyer, amicus curiae.

No Atty. Listed for Orleans Indigent Def. Bd., amicus curiae.

ON REHEARING

CALOGERO, Chief Justice. ^*

We granted certiorari to determine whether Act 688 of 1982, amending Louisiana's Habitual Offender Law, La.R.S. 15:529.1, legislatively repudiated nineteen years of jurisprudence which has consistently held that second offender status can only result from an offense committed after a first conviction, and third offender status can only result from an offense committed after a conviction which qualifies a defendant as a second offender. In our original opinion in this case, we held that the 1982 amendment legislatively overruled the Jackson ¹ sequential requirement rule and that Mims' application for post conviction relief was properly denied by the court of appeal. We granted a rehearing on relator's application.

After further study, we find that R.S. 15:529.1 as amended by Act 688 of 1982 is vague and ambiguous. We conclude, therefore, that the amended habitual offender statute should be strictly construed and, moreover, that the doctrine of lenity requires this strict construction of the statute most favorably to the accused. As we interpret the statute, the sequential requirement for enhanced penalties in the sentencing of multiple offenders survives. The cornerstone of that scheme is that felons graduate to second offender status, not by committing multiple crimes, but by committing a crime or crimes after having been convicted. Relator Mims in this case is entitled to relief. ²

Ira Joe Mims was convicted on November 22, 1978 of two felonies, attempted simple burglary and attempted simple robbery. These two felonies arose from independent criminal conduct on separate dates, needless to say, both prior to his first conviction. Mims was imprisoned until March 1983.

Subsequently, on January 12, 1985, he committed the crimes of second degree battery and purse-snatching for beating an elderly woman and stealing her purse (one incident). The State filed a multiple bill against Mims under Louisiana's Habitual Offender Law, La.R.S. 15:529.1, with the 1978 convictions used as predicate offenses. Mims was found guilty by jury verdict of both of the latter crimes. He received a penalty of hard labor in connection with concurrent sentences of five years (for the battery, unenhanced--the maximum) and thirty-five years (for the purse snatching, enhanced--five years short of the maximum for a third offender). ³ The court of appeal affirmed Mims' convictions and sentences. State v. Mims, 501 So.2d 962 (La.App.2d Cir.1987).

Mims filed for post-conviction relief in 1988 asserting that his thirty-five year sentence for purse snatching as a third offender was improper because the two predicate convictions, in 1978, occurred on the same day. His application was denied by both the district court and the court of appeal. State v. Mims, 535 So.2d 1103 (La.App.2d Cir.1988). As already noted, after first granting his writ application, we denied Mims relief in our original opinion. Now, on rehearing however, we conclude that Mims was not properly a third offender upon committing either the second degree battery or the purse snatching because, although at the time of commission of each of these offenses he had earlier been convicted twice (attempted simple burglary and attempted simple robbery), he nonetheless had not been through the required sequencing of commission followed by conviction, then commission followed by another conviction. He had been brought before the bar of justice for a first time after committing both crimes in 1978. It was only the commission of the battery and purse snatching in 1985--which succeeded the conviction for the first and second crimes--that qualified him as a multiple offender (in fact, a second offender as to each of the latter crimes). ⁴

The Habitual Offender Law, La.R.S. 15:529.1, provides in part:

A. Any person who, after having been convicted within this state of a felony, or who, after having been convicted under the laws of any other state or of the United States, or any foreign government or country of a crime which, if committed in this state would be a felony, thereafter commits any subsequent felony within this state, upon conviction of said felony, shall be punished as follows:

(1) If the second felony is such that upon a first conviction the offender would be punishable by imprisonment for any term less than his natural life, then the sentence to imprisonment shall be for a determinate term not less than one-half [one-third prior to the 1989 amendment] the longest term and not more than twice the longest term prescribed for a first conviction.

(2) If the third felony is such that....

(3) If the fourth or subsequent felony is such that....

B. It is hereby declared to be the intent of this Section that an offender need not have been adjudged to be a second offender in a previous prosecution in order to be charged as and adjudged to be a third offender, or that an offender has been adjudged in a prior prosecution to be a third offender in order to be convicted as a fourth offender in a prosecution for a subsequent crime.

. . . . .

Prior to 1956, the habitual offender statute did not include Sec. B by that designation or in content. It did, however, include the content of Sec. A. Nonetheless, this court held in State v. Clague, 224 La. 27, 68 So.2d 746 (1953), and State v. Williams, 226 La. 862, 77 So.2d 515 (1955), surprisingly, that there was no sequential requirement in the statute; that is, that two felonies committed prior to a first conviction would support a thrice multiplied enhancement of sentence for a subsequent felony conviction (e.g., if two felonies are committed, and convictions follow, and then the felon commits another crime, he would qualify as a third offender even though he had not earlier been twice convicted in the proper sequence; i.e., crime, conviction, then crime, conviction). Indeed, this would be so even if the two predicate crimes arose out of the same incident. That was the case in Clague.

Apparently in response to this interpretation of the statute, the Legislature by Act 312 of 1956 engrafted a paragraph onto Sec. 529.1 which contained the pre-1982 version of Sec. B. ⁵ This amendment was considered to be a "legislative repudiation of the Williams case." State ex rel. Jackson v. Henderson, 283 So.2d 210, 212 (La.1973) (quoting Bennett, Criminal Law and Procedure, 17 La.L.Rev. 60-61 (1956)). The new paragraph (Section B) of Act 312 of 1956 contained two sentences. The first sentence provided:

It is hereby declared to be the intent of this Section that an offender need not have been adjudged to be a second offender in a previous prosecution in order to be charged as, and adjudged to be, a third offender, or that an offender have been adjudged in a prior prosecution to be a third offender in order to be convicted as a fourth offender in a prosecution for a subsequent crime.

This sentence clarifies, one might say, favorably to the prosecutor, that, in order to be charged as a multiple offender, a felon need not have been so labeled, and so adjudged, previously.

The second sentence stated:

Provided, however, that the offender shall be deemed a second offender only if the crime resulting in the second conviction shall have been committed after his first conviction; that one shall be deemed a third offender under this Section only if the crime resulting in the third conviction shall have been committed after his conviction for a crime which in fact caused him to be a second offender in the prior instance; and that one shall be deemed to be a fourth offender under this Section only if the crime resulting in the fourth conviction shall have been committed after his conviction for a crime which in fact caused him to be a third offender, whether or not he was adjudged to be a third offender in the prior instance. (emphasis added)

The jurisprudence interpreting this statute in the interim between 1956 and the 1982 amendment consistently held that under the Habitual Offender Law, second offender status could only result from an offense committed after a first conviction, and third offender status after a conviction which would have qualified as a second offender conviction, and so on. Jackson, supra; State v. Schamburge, 344 So.2d 997 (La.1977); State v. Taylor, 347 So.2d 172 (La.1977); State v. Chapman, 367 So.2d 808 (La.1979); State v. Simmons, 422 So.2d 138 (La.1982); State v. Lennon, 427 So.2d 860 (La.1983).

Consistently present in the statute from its inception by Act 15 of 1928, however, has been Sec. A which sets forth the threshold requirements for habitual offender status. Sec. A states A. Any person who, after having been convicted within this state of a felony, or who, after having been convicted under the laws of any other state or of the United States, or any foreign government or country of a...