State Of Louisiana v. Michael Benbow

• Court: Louisiana Court of Appeal
• Decided: May 12, 2020
• Docket: 2020KW0118
• Status: Unknown

Opinion

STATE OF LOUISIANA COURT OF APPEAL, FIRST CIRCUIT

STATE OF LOUISIANA NO. 2020 Kw 0118 VERSUS

MICHAEL 3ENBOW

MAY 12 2020

In Re: Michael Benbow, applying for supervisory writs, 22nd Judicial District Ccurt, Parish of St. Tammany, No. 503077

BEFORE: McDONALD, THERIOT, AND CHUTZ, JJ.

WRIT GRANTED. The district ccurt’s ruling = denying relator’s motion to correct an illegal sentence is reversed. For a viclation of La. R.S 40:967 (A} (1) the penalty is imprisonment at hard labor for not less than two years nor more than thirty years, with the first two years of said sentence being without benefit of parole, probation, or suspension of sentence and a fine of not more than $50,000. See La. R.S. 40:967(B) (4) (ob); see also State v. Payne, 2017-13 (La. App. 5th Cir. 5/17/17), 220 So.3d 889, 897-98. Additionally, La. R.S. 15:529.1(G) provides that the sentence for a second felony habitual offender shall be at hard labor without benefit of probation ocr suspension of sentence; however, it does not restrict parole. The restrictions on parole eligibility imposed on habitual offender sentences under La. R.S. 15:529.1 “are thess called for in the reference statute.” State v. Esteen, 2001-879 (La. App. Sth Cir. 5/15/02), 821 So.2d 60, 79 n.24, writ denied, 2002-1540 (La. 12/13/02), 831 So.2d 983. Thus, the district court erred in restricting parole eligibility for the entirety of relator’s sentences. An illegal sentence may be corrected at any time by the court that imposed the sentence, or by an appellate court on review. see La. Code Crim. P. art. 882(A). Accordingly, relator’s sentence on count ene is amended to reflect that only two years are to be served without benefit of parole, probation or suspension of sentence. Relator’s sentence as a habitual offender on count two is amended to reflect that only two years are to be served without benefit of parole, This matter is remanded to the district court to amend the sentencing minutes and commitment order to reflect this court’s ruling.

MRT

COURT OF APPEAL, FIRST CIRCUIT

DE PU LERK GF COURT FOR THE COURT