State ex rel. Williams v. Henderson, 54061

• Court: Supreme Court of Louisiana
• Writing for the Court: DIXON; SUMMERS; MARCUS; SUMMERS
• Citation: 289 So.2d 74
• Parties: STATE of Louisiana, ex rel. Willie WILLIAMS v. C. Murray HENDERSON, Warden, Louisiana State Penitentiary.
• Docket Number: No. 54061,54061
• Decision Date: 14 January 1974

Page 74

289 So.2d 74 STATE of Louisiana, ex rel. Willie WILLIAMS
v.
C. Murray HENDERSON, Warden, Louisiana State Penitentiary. No. 54061. Supreme Court of Louisiana. Jan. 14, 1974.
Dissenting Opinion Jan. 31, 1974.
Rehearing Denied Feb. 15, 1974.

Page 75

James E. Franklin, Jr., Shreveport, for plaintiff-relator.

William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John A. Richardson, Dist. Atty., Charles R. Lindsay, Asst. Dist. Atty., for defendant-respondent.

DIXON, Justice.

On May 26, 1971 petitioner was sentenced to two and one-half years at hard labor for attempted simple robbery. Defendant appealed and this court affirmed the conviction. Rehearing was denied on June 13, 1972. On August 15, 1972 the Caddo Parish district attorney filed a bill of information charging petitioner with being a fourth felony offender. R.S. 15:529.1. On September 20, 1972 petitioner was discharged by the warden of Angola as having served his sentence under the good time act of 1972. On December 21, 1972 petitioner pleaded guilty to being a third felony offender. The prior sentence was vacated and a sentence of five years at hard labor was imposed with credit for time actually served.

Subsequently petitioner sought habeas corpus relief from the First Judicial District, Parish of Caddo, which was denied without hearing. We granted petitioner's application for writs of certiorari and habeas corpus.

Petitioner alleges that R.S. 15:529.1 is unconstitutional as written, that it is unconstitutional as applied, and that the statute does not permit the enhancement of a sentence that has been served.

We reject the contention that R.S. 15:529.1 is unconstitutional on its face. This statute does not make it a crime to be a multiple offender, but rather merely prescribes that an enhanced penalty be levied against multiple offenders. State v. Vale, 252 La. 1056, 215 So.2d 811 (1968), reversed on other grounds, 399 U.S. 30, 90 S.Ct. 1969, 26 L.Ed.2d 409. As an enhancement-of-penalty provision the statute is not unconstitutional as punishing status rather than a crime, nor does it constitute double jeopardy. State v. Jackson, 258 La. 632, 247 So.2d 558 (1971); State v. Vale, supra; Price v. Allgood, 369 F.2d 376 (5th Cir. 1966), cert. denied 386 U.S. 998, 87 S.Ct. 1321, 18 L.Ed.2d 349, rehearing denied, 387 U.S. 939, 87 S.Ct. 2057, 18 L.Ed.2d 1009. We do not find the language of the statute vague or ambiguous.

R.S. 15:529.1 reads in pertinent part:

'D. If, at any time, either after conviction or sentence, it shall appear that a person convicted of a felony has previously been convicted of a felony under the laws of this state, or has been convicted under the laws of any other state or of the United States; . . .' (Emphasis added).

We are confronted with the question of whether the language emphasized above means that an enhanced penalty can be imposed after a defendant has served his sentence and after some nineteen months have elapsed since the sentence on the underlying charge. In State v. George, 218 La. 18, 48 So.2d 265 (1950), this court held that the statute permitted an information to be filed and an accused sentenced as a multiple offender even after the original sentence imposed had been served. In George, the re-sentencing procedure was held approximately one month after imposition

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of the original sentence; however, the defendant had been discharged the same day that he was sentenced, since the time in jail awaiting trial exceeded the sentence imposed. We note that the proceeding under the multiple offender statute was held promptly approximately thirty days after sentence on the underlying charge. George relies on People ex rel. Fernandez v. Kaiser, 230 App.Div. 646, 246 N.Y.S. 309, affirmed, 256 N.Y. 581, 177 N.E. 149, cert. denied 284 U.S. 631, 52 S.Ct. 16, 76 L.Ed. 537, for the interpretation of the statutory language involved. We note that New York has amended its habitual offender statute and now requires that the recidivist proceeding precede imposition of the sentence for the charge which supports it. N.Y.Criminal Procedure Law, McKinney's Consol.Laws, c. 11--A, Sect. 400.20 (1971); N.Y.Penal Law, McKinney's Consol.Laws, c. 40, Sect. 70.10(2) (1967).

The majority of states which have recidivist statutes require that the proceeding be instituted at a specific time or within a specified time limit. Some require that the defendant be charged as a multiple offender in the indictment charging the underlying offense. E.g. Ariz.Rev.Stat.Ann. Section 13--1649; Cal.Penal Code Sections 969, 969a; Georgia Code Ann. Section 27--2511; Indiana Ann.Stat. Section 9--2208, IC 1971, 35--8--8--2; Kentucky Rev.Stat.Ann. Section 431.190; Mass.Gen.Laws Ann. c. 279 Section 25; N.C.Gen.Stat. Section 15--147; Okl.Stat.Ann. 22 § 860; Rhode Island Gen.Laws Ann. Section 12--19--21; Utah Code Ann. Section 76--1--19; Vermont Stat.Ann. 13 § 11. Other states authorize a recidivist proceeding at any time during service of the last sentence. Alaska Stat. Section 12.55.060(a); N.D.Cent.Code Section 12--06--23; Va.Code Ann.Section 53--296. Two states permit institution of the proceeding within two years from the last conviction. Or.Rev.Stat. Section 168.055(1); Pa.Stat.Ann. 18 § 5108(d). The remainder require the proceeding precede imposition of the sentence for the underlying charge. E.g...