State v. Jackson

• Decision Date: 16 February 2001
• Docket Number: No. 2000 KA 0717.,2000 KA 0717.
• Parties: STATE of Louisiana v. Kenneth JACKSON.
• Court: Court of Appeal of Louisiana — District of US

814 So.2d 6

STATE of Louisiana v. Kenneth JACKSON.

No. 2000 KA 0717.

Court of Appeal of Louisiana, First Circuit.

February 16, 2001.

Writ Denied March 15, 2002.

COPYRIGHT MATERIAL OMITTED

Doug Moreau, District Attorney, Baton Rouge, by Dana Cummings, Assistant District Attorney, for Appellee, State of Louisiana.

Edward Bauman, Baton Rouge, for Defendant/Appellant, Kenneth Jackson.

Before: CARTER, C.J., FOIL, GONZALES, WHIPPLE, FOGG, PARRO, FITZSIMMONS, KUHN, GUIDRY, WEIMER, PETTIGREW, DOWNING, and CONQUE,¹ JJ.

CARTER, Chief Judge.

Kenneth Jackson was charged by bill of information with armed robbery, a violation of La. R.S. 14:64. He pled not guilty and, after trial by jury, was convicted as charged. On February 20, 1997, the court sentenced him to serve a term of forty years imprisonment at hard labor, without benefit of parole, probation, or suspension of sentence. This court affirmed the conviction and sentence. State v. Jackson, 97-1341 (La.App. 1st Cir.6/29/98), 720 So.2d 468, (unpublished).

Shortly after the district court entered an order of appeal for the armed robbery conviction and the original sentence, the state filed a bill of information charging defendant as a third felony habitual offender. See La. R.S. 15:529.1. After a hearing conducted on September 11, 1997, the trial court found defendant to be a third felony habitual offender and sentenced him to serve a term of life imprisonment at hard labor, without benefit of parole, probation, or suspension of sentence. Defendant has appealed the habitual offender adjudication and sentence, urging two assignments of error.²

FAILURE TO VACATE ORIGINAL SENTENCE

In the first assignment, defendant argues his habitual offender sentence should be vacated because the district court failed to vacate the original sentence before sentencing defendant as a habitual offender.

The habitual offender statute requires a sentencing court, when imposing a habitual offender sentence, to vacate any sentence already imposed: "When the judge finds that [the defendant] has been convicted of a prior felony ..., the court shall sentence him to the punishment prescribed in this Section, and shall vacate the previous sentence if already imposed, deducting from the new sentence the time actually served milder the sentence so vacated." La. R.S. 15:529.1D(3) (emphasis added).

The habitual offender proceeding does not charge a new crime but is merely a method of increasing the punishment of second and subsequent offenders. The enhancement of the penalty for habitual offenders convicted of a new felony addresses itself only to the sentencing powers of the trial court after conviction and has no functional relationship to the innocence or guilt as to the instant crime. In other words, the sentence imposed in such cases is for the new crime only; the sentence is simply more severe if the defendant is a habitual offender. State v. Walker, 416 So.2d 534, 536 (La.1982).

When faced in previous criminal appeals with the failure of a trial court to vacate the original sentence, this court has simply vacated the original sentence to conform to the requirements of the habitual offender statute and has found it unnecessary to vacate the habitual offender sentence or remand for resentencing. See State v. Smith, 00-0423, p. 5 (La.App. 1st Cir.11/3/00), 769 So.2d 1280, 1283; State v. Hayes, 97-1526, pp. 7-8 (La.App. 1st Cir.5/15/98), 712 So.2d 1019, 1023, writ granted on other grounds, 98-1603 (La.12/11/98), 729 So.2d 584.³ Such an approach is consistent with the intent of the trial court, avoids any danger of a double jeopardy violation, and is in the interest of judicial economy. For the following reasons, we find no reason to depart from the procedure we have used in the past.

The language of the habitual offender statute clearly requires the sentencing court, when imposing a habitual offender sentence, to vacate any sentence already imposed in the case. A trial court's failure to do so results in an illegal sentence. In those cases in which the trial court clearly intended to impose a new sentence as a substitute for the original sentence, no sentencing discretion is involved in the correction of the illegal sentence and an appellate court has authority under La.Code Crim. P. art. 882 to correct the sentence. The correction eliminates any possibility the Department of Public Safety and Corrections might require the defendant to serve both sentences. As a result, correction of the error is in the defendant's favor.

A related issue was considered by the second circuit in State v. Hunt, 573 So.2d 585, 587 (La.App. 2nd Cir.1991). In that case, the trial court sentenced the defendant to serve a term of ten years for a drug conviction. After the sentence was imposed, the defendant was adjudicated and sentenced as a second felony habitual offender. The trial court then sentenced him to serve an additional, consecutive tenyear sentence. Noting that the court's imposition of an additional ten-year sentence, without vacating the original sentence, was illegal, the second circuit amended the sentence to make it a total of twenty years. In doing so, the court noted that the trial court erred when it failed to vacate the original sentence, but that the court's intent to increase the substantive sentence from ten to twenty years was obvious. Hunt, 573 So.2d at 587.

The third, fourth, and fifth circuits do not look to the court's intent. In the third and fifth Circuits, the original sentence is viewed as still being in effect, the subsequent habitual offender sentence is considered to be "null and void," and the case is remanded for resentencing on the habitual offender adjudication. See State v. Dearmas, 606 So.2d 567, 569 (La.App. 5th Cir. 1992) (citing State v. Hingle, 242 La. 844 139 So.2d 205 (1961)). See also State v. Melbert, 00-00527 (La.App. 3rd Cir.11/2/00), 776 So.2d 499; State v. London, 98-65, pp. 3-4 (La.App. 5th Cir.5127/98), 712 So.2d 287, 288, writ denied, 98-1903 (La.11/13/98), 730 So.2d 933. The fourth circuit does not use the "null and void" language, but it vacates the habitual offender sentence and remands for resentencing as a habitual offender. See State v. Anderson, 99-1407, p. 5 (La.App. 4th Cir.1/26/00), 753 So.2d 321, 325; State v. Moffett, 572 So.2d 705, 707 (La.App. 4th Cir.1990).

The "null and void" language used in the fifth circuit cases comes from the original hearing in State v. Hingle, wherein the supreme court held that, if a trial court imposes the habitual offender sentence without vacating the original sentence, the original sentence remains in effect, the subsequent habitual offender sentence is "null and void" and must be set aside, and the case must be remanded for the imposition of a proper sentence. Hingle, 139 So.2d at 207. Chief Justice Fournet dissented. He disagreed with the majority's conclusion that the multiple offender sentence is null and void simply because the trial court overlooked its mandatory duty under the statute to vacate the previous sentence. Chief Justice Fournet believed the appellate court instead should simply vacate the original sentence. Hingle, 139 So.2d at 209. On rehearing in 1962, the supreme court vacated the habitual offender adjudication on the ground the proceedings violateclahe terms of the defendant's plea agreement with the state. Chief Justice Fournet authored the majority opinion on rehearing, and the "null and void" language included in the original opinion was not part of the opinion on rehearing. The supreme court, however, used similar language in State ex rel. Frazier v. Blackburn, 390 So.2d 203 (La.1980) (citing State v. Hingle): "Because the trial court failed to vacate the defendant's original sentence before imposing the second sentence under B.S. 15:529.1, that second sentence is declared void."

In Hudson v. Day, 96-2428 (La.App. 1st (ir.11/7/97), 703 So.2d 702, this court adopted the reasoning of the fifth circuit. An inmate in the custody of the Louisiana Department of Public Safety and Corrections filed suit claiming the Department improperly refused to recognize his eligibility for good time. The inmate had been sentenced as a habitual offender. As a result, the Department did not consider him eligible to receive good time. See La. R.S. 15:571.3C(2). Although the commitment stated that the original sentence had been vacated, the sentencing transcript did net. Noting that the transcript prevailed in the event of a discrepancy with the minutes, this court concluded the original sentence had not been vacated. Because the trial court failed to vacate the original sentence at the time of the habitual offender sentence, this court determined the original sentence was still in effect and the multiple offender sentence was null and void. 703 So.2d at 703 (citing State v. Jackson, 95-423, p. 6 (La.App. 5th Cir.11/15/95), 665 So.2d 467, 469).

A recent ruling by the supreme court calls into question the continued valility of an appellate court viewing a habitual offender sentence as being null and void. In State v. Mayer, 98-1311 (La.App. 5th Cir.9/28/99), 743 So.2d 304, writ granted in part, 99-3124 (La.3/31/00), 760 So.2d 300, the fifth circuit declared a habitual offender sentence to be null and void because the original sentence had not been vacated. In doing so, the court noted that the transcript, which did not show the original sentence was vacated, prevailed over the minute entry and commitment, which stated that the original sentence had been vacated. The supreme court vacated the appellate court's ruling and reinstated the habitual offender sentence. State v. Mayer, 1999-3124 (La.3/31/00), 760 So.2d 309 (per curiam). The supreme court did not overrule long-standing jurisprudence that, in the event of a discrepancy between the minutes and the transcript, the transcript prevails. See State v. Lynch, 441 So.2d 732, 734 (La.1983). Instead, the supreme court noted that, to the extent the...