State v. Vincent, 65640
| Decision Date | 07 April 1980 |
| Docket Number | No. 65640,65640 |
| Citation | 387 So.2d 1097 |
| Parties | STATE of Louisiana v. Lloyd VINCENT. |
| Court | Louisiana Supreme Court |
William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Connick, Dist. Atty., Louise Korns, Asst. Dist. Atty., for plaintiff-appellee.
Robert Barnard, Orleans Indigent Defender Program, New Orleans, for defendant-appellant.
*
Lloyd Vincent was charged in the same information in separate counts with simple burglary in violation of La.R.S. 14:62 and receiving stolen things in violation of La.R.S. 14:69. After a jury trial, defendant was found guilty of simple burglary on count one and guilty of "possession of stolen property in the amount of $100.00" on count two. Defendant was sentenced to serve twelve years at hard labor on count one and two years at hard labor on count two with credit for time served. Thereafter, the district attorney filed an information accusing defendant of prior felony convictions pursuant to La.R.S. 15:529.1 (Habitual Offender Law). After a hearing, the trial judge found defendant to be an habitual offender. He vacated the sentences previously imposed and sentenced defendant to serve twenty years at hard labor on each of the two counts with credit for time served. The court expressly directed that the sentences be served concurrently. On appeal, defendant relies on three assignments of error for reversal of his convictions and sentences.
We first consider an error which we have discovered in the verdict. Since the verdict is part of the pleadings and proceedings, any error therein is reviewable under La. Code Crim. P. art., 920(2). State v. White, 315 So.2d 301 (La.1975) (on rehearing).
Defendant was charged in count two with receiving stolen things valued at $150.00 in violation of La.R.S. 14:69, which provides in pertinent part:
Receiving stolen things is the intentional procuring, receiving, or concealing of anything of value which has been the subject of any robbery or theft, under circumstances which indicate that the offender knew or had good reason to believe that the thing was the subject of one of these offenses.
When the value of the stolen things amounts to one hundred dollars or more, but less than a value of five hundred dollars, the offender shall be imprisoned, with or without hard labor, for not more than two years, or may be fined not more than two thousand dollars, or both.
The jury returned the following verdict:
Count 2-Possession of Stolen Property
We, the jury, find the defendant, Lloyd Vincent guilty of possession of stolen property in the amount of $100.00.
La. Code Crim. P. art. 813 provides that, if the court finds that the verdict is not responsive to the indictment, it shall refuse to receive it, and shall remand the jury with the necessary oral instructions. La. Code Crim. P. art. 814 provides the only responsive verdicts which may be rendered where the indictment charges certain listed offenses. The crime of receiving stolen things is not listed therein. La. Code Crim. P. art. 815 provides:
In all cases not provided for in Article 814, the following verdicts are responsive:
(1) Guilty;
(2) Guilty of a lesser and included grade of the offense even though the offense charged is a felony, and the lesser offense a misdemeanor; or
(3) Not Guilty.
Accordingly, we must determine whether the verdict returned, "guilty of possession of stolen property in the amount of $100.00," is equivalent to one of the verdicts listed in art. 815.
There is no crime in Louisiana entitled "Possession of Stolen Property." Nevertheless, there is no formal requirement as to the language of the verdict except that it shall clearly convey the intention of the jury. La. Code Crim. P. art. 810; see State v. White, supra. In determining the intention of the jury, if ambiguous, reference may be had to the pleadings, the evidence, the admissions of the parties, the instructions, and the forms of the verdict submitted. State ex rel. Miller v. Henderson, 329 So.2d 707 (La.1976); State v. Broadnax, 216 La. 1003, 45 So.2d 604 (1950). In Miller, defendant was charged with escape from the penitentiary; the verdict returned was "Guilty of Attempted Escape." We held the verdict to be responsive to the charge despite the failure of the jury to include the words "from the penitentiary." We noted that the bill of information specifically charged defendant with simple escape from the penitentiary, that the trial judge in instructing the jury informed it that the defendant was accused of violating that specific statute, which he read to the jury, and that the trial judge also instructed the jury that it could find one of the following verdicts: Guilty, guilty of attempted escape from Louisiana State penitentiary, and not guilty.
and furnished it with a list of those verdicts. There is no indication that the jury was even aware of the elements of the crime charged. We are unable to say that by the use of the term "possession" the jury intended to find defendant guilty of receiving stolen things (the crime charged) or guilty of a lesser and included grade of the offense. Thus, the verdict returned was not responsive to the offense charged. The trial judge erred in receiving it.
Hence, we must reverse the conviction and sentence in count two (receiving stolen things).
Defendant contends the trial judge erred in denying his motion to quash the bill of information. He argues that his prosecution for burglary and for receiving things stolen in that burglary places him twice in jeopardy for the same offense.
Both the Louisiana and federal constitutions provide that no person shall be twice placed in jeopardy for the same offense. U.S.Const. amend. 5;1 La.Const. art. 1, § 15. Louisiana applies the "distinct fact" test for determining the identity of offenses where the plea of double jeopardy is raised. State v. Doughty, 379 So.2d 1088 (La.1980). This test holds that two offenses are the same for double jeopardy purposes unless each offense requires proof of an additional fact that the other does not. If each offense requires proof of an additional fact that the other does not, then the accused may be tried and convicted on both offenses. State v. Doughty, supra; State v. Solomon, 379 So.2d 1078 (La.1980).
Simple burglary in defined as
the unauthorized entering of any dwelling, vehicle, watercraft, or other structure, movable or immovable, with the intent to commit a felony or any theft therein . . . .
La.R.S. 14:62. Receiving stolen things is defined as
the intentional procuring, receiving, or concealing of anything of value which has been the subject of any robbery or theft, under circumstances which indicate that the offender knew or had good reason to believe that the thing was the subject of one of these offenses.
La.R.S. 14:69. Applying the distinct fact test, we conclude that the two crimes are separate offenses, each requiring proof of a fact that the other does require. Simple burglary requires proof of an unauthorized entry with the intent to commit a felony or any theft therein. Receiving stolen things does not require this proof. Conversely, receiving stolen things requires proof that the thing was the subject of a robbery or theft; simple burglary does not require this proof. Hence, the two crimes are not the same offense.
However, even though the crimes charged are separate, a defendant cannot be twice punished for the same conduct. City of Baton Rouge v. Jackson, 310 So.2d 596 (La.1975); State v. Didier, 262 La. 364, 263 So.2d 322 (1972); State v. Bonfanti, 262 La. 153, 262 So.2d 504 (1972). Nevertheless, in State v. Solomon, supra, we held that, even though the same incident led to charges of burglary and theft, defendant's double jeopardy rights were not violated as the two charges were not based on the exact same conduct. We stated:
The crime of burglary was completed upon entry into the car with the intent to commit the theft therein, whereas the theft did not occur until the defendant actually took the watch from the glove compartment.
The same is true in the instant case. The same incident led to charges of burglary and receiving things. However, the burglary was completed before the alleged reception of stolen things took place. The two charges are not based on the exact same conduct. Therefore, defendant may be prosecuted for both offenses without being placed twice in jeopardy for the same offense. The trial judge did not err in denying the motion to quash.
Assignment of Error No. 1 is without merit.
Defendant contends the trial judge erred in refusing to give defendant's special written charge to the jury. He argues the requested charge was not covered in the court's general charge and was necessary to charge the jury properly as to the law applicable to the case.
On the day of trial, but prior to its commencement, defendant submitted to the court the following special written charge:
The defendant has...
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State v. Tucker
...to a prior felony conviction, the date of discharge from parole is equated with the expiration of the maximum sentence. State v. Vincent, 387 So.2d 1097 (La.1980). The presentence investigation report prepared in this case shows that less than one year elapsed between Tucker's discharge fro......
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96-0084 La.App. 4 Cir. 5/21/97, State v. Langlois
...offender law. Furthermore, although the date of release from parole is equated with the expiration of the maximum sentence, State v. Vincent, 387 So.2d 1097 (La.1980); State v. Rousselle, 514 So.2d 577 (La.App. 4th Cir.1987), writ denied 520 So.2d 738 (La.1988) and cert. denied Rousselle v.......
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