State v. Carson

527 So. 2d 1018, 1988 WL 49474
CourtLouisiana Court of Appeal
DecidedMay 17, 1988
Docket87 KA 1452
StatusPublished
Cited by14 cases

This text of 527 So. 2d 1018 (State v. Carson) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Carson, 527 So. 2d 1018, 1988 WL 49474 (La. Ct. App. 1988).

Opinion

527 So.2d 1018 (1988)

STATE of Louisiana
v.
Milton J. CARSON.

No. 87 KA 1452.

Court of Appeal of Louisiana, First Circuit.

May 17, 1988.
Rehearing Denied June 24, 1988.

*1019 William R. Campbell, Atty. for State of La., New Orleans, Walter Reed, Dist. Atty., Covington, for appellee.

James H. Looney, Office of Indigent Defender, Covington, for appellant.

Before SHORTESS, LANIER and CRAIN, JJ.

SHORTESS, Judge.

Milton J. Carson[1] (defendant) was charged by bill of information[2] with operating a vehicle while intoxicated. LSA-R.S. 14:98. The bill of information stated that the offense was defendant's "fifth offense" and listed four previous convictions. After the trial court denied his motions to suppress evidence and to quash the bill of information, defendant withdrew his original plea of not guilty and entered a conditional plea of guilty to fourth offense operating a vehicle while intoxicated, LSA-R.S. 14:98(E), reserving his right to appeal the denial of the motions referred to above. State v. Crosby, 338 So.2d 584 (La.1976). The trial court sentenced defendant to imprisonment at hard labor for a term of ten years to run concurrently with a sentence for third offense operating a vehicle while intoxicated which defendant was then serving. Defendant has appealed, urging four assignments of error. Defendant briefed only assignments two and four, and in brief expressly abandoned assignments one and three.

The evidence introduced at the suppression hearing revealed that at about 12:10 a.m. on March 10, 1985, Louisiana State Trooper Glen Nobles stopped the vehicle defendant was driving on a two-lane highway (La. Hwy. 11) in St. Tammany Parish; that earlier, defendant's vehicle had almost run head-on into Nobles' police unit; that when defendant got out of his vehicle, Nobles observed that he was very unsteady on his feet and had to keep his hand on his vehicle to maintain his balance; that Nobles smelled alcohol about defendant's breath when he talked to defendant; that Nobles advised defendant of his constitutional rights and gave him a field sobriety test, during which defendant swayed and staggered; that defendant told Nobles he had consumed five or six beers and felt he was intoxicated; and that a P.E.I. test administered at the scene showed defendant had a blood-alcohol content of .13%.

ASSIGNMENTS OF ERROR NOS. TWO AND FOUR

Defendant contends that the trial court erred by denying his motion to quash the bill of information. He argues that each of the prior convictions listed in the bill of information was defective and cannot be used as a predicate offense to support his conviction as a fourth offender.

*1020 In order for a guilty plea to be used as a basis for actual imprisonment, enhancement of actual imprisonment, or conversion of a subsequent misdemeanor into a felony, the trial judge must inform the defendant that by pleading guilty he waives (a) his privilege against compulsory self-incrimination, (b) his right to trial and jury trial where it is applicable, and (c) his right to confront his accusers. The judge also must ascertain that the accused understands what the plea connotes and its consequences. State v. Stephenson, 412 So.2d 553 (La.1982); State v. Jones, 404 So.2d 1192 (La.1981). This rule applies to guilty pleas entered after September 24, 1981, the date State v. Jones became final. State v. Moore, 416 So.2d 1298 (La.1982). It is the state's burden to show that the defendant's guilty plea was taken in compliance with Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), and that the defendant expressly and knowingly waived his rights. State v. Santiago, 416 So.2d 524 (La.1982); State v. Ayres, 509 So.2d 763 (La.App. 2d Cir.1987).

Additionally, an uncounseled D.W.I. conviction may not be used to enhance punishment on a subsequent offense, absent a knowing and intelligent waiver of counsel. State v. Wiggins, 399 So.2d 206 (La.1981); State v. Franklin, 337 So.2d 1152 (La.1976). Before the trial court can accept a defendant's waiver of counsel, the record must indicate the court attempted to determine defendant's literacy, competency, understanding, and volition. State v. LaFleur, 391 So.2d 445 (La.1980).

In order to enhance a penalty, the jurisprudence requires the state to affirmatively prove that the defendant had the benefit of counsel or waived counsel and that he received a full Boykin colloquy. The state may rely upon either the transcript of the plea of guilty or the minute entry. State v. Bland, 419 So.2d 1227 (La. 1982). While a colloquy between the judge and defendant is the preferred method of proof of a free and voluntary waiver, the colloquy is not indispensable when the record contains some other affirmative showing of proper waiver. State v. Nuccio, 454 So.2d 93 (La.1984).

The four prior offenses set forth in the bill of information were listed in the following order:

(1) A May 3, 1984, guilty plea to D.W.I. in Slidell City Court bearing docket number 18333X;

(2) An April 23, 1981, guilty plea to D.W.I. in Slidell City Court under docket number 7249X;

(3) A January 22, 1981, guilty plea to D.W.I. in the Twenty-Second Judicial District Court bearing docket number 82966; and

(4) An October 3, 1986, guilty plea to D.W.I. in Orleans Criminal District Court under docket number 306-278.

PREDICATE OFFENSE NUMBER ONE

In regard to the May 3, 1984, guilty plea to D.W.I. in Slidell City Court the state introduced into evidence certified copies of the bill of information, the pertinent minute entry dated May 3, 1984, and a waiver-of constitutional-rights-upon-entry-of-guilty-plea form signed by defendant.[3] The certified copy of the minutes shows that defendant was advised of his constitutional rights in conformity with State v. Jones; and defendant concedes in brief that the minute entry reflects that he was properly advised of his rights. However, defendant disputes that he was actually given those rights and contends that the trial court erred by refusing to listen to a tape recording of his Boykin hearing on the May 3, 1984, plea.

The record reflects that when defense counsel sought to have the trial court listen to the tape recording of defendant's Boykin hearing, it refused to listen and noted that any error in the minute entry could not be corrected before the trial court. We find that the minute entry revealed defendant had been informed of his *1021 rights in conformity with State v. Jones, but since defendant challenged the accuracy of the minute entry, the trial court erred by refusing to listen to the tape to determine whether the minute entry was correct. Cf. State v. Bland, 419 So.2d at 1232; State v. Smith, 477 So.2d 875, 880 (La.App. 4th Cir.1985); State v. Murray, 436 So.2d 775, 779 (La.App. 4th Cir.1983). Accordingly, on remand, defendant shall be allowed to introduce into evidence, at a new hearing on the motion to quash, the tape recording of the Boykin hearing obtained from the Slidell City Court or a certified transcript thereof so the trial court can determine from the minute entry whether the requirements of State v. Jones were met as to the May 3, 1984, guilty plea.

PREDICATE OFFENSE NUMBER TWO

Since the April 23, 1981, guilty plea to D.W.I. was entered prior to the date State v. Jones

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Cite This Page — Counsel Stack

Bluebook (online)
527 So. 2d 1018, 1988 WL 49474, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-carson-lactapp-1988.