State v. Duke

84 So. 3d 722, 11 La.App. 3 Cir. 688, 2012 WL 280612, 2012 La. App. LEXIS 106
CourtLouisiana Court of Appeal
DecidedFebruary 1, 2012
DocketNo. 11-688
StatusPublished
Cited by1 cases

This text of 84 So. 3d 722 (State v. Duke) 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. Duke, 84 So. 3d 722, 11 La.App. 3 Cir. 688, 2012 WL 280612, 2012 La. App. LEXIS 106 (La. Ct. App. 2012).

Opinions

GREMILLION, Judge.

hOn September 3, 2009, Defendant, Rendrick R. Duke, sold crack cocaine to an undercover agent. Consequently, he was charged by bill of information in count one with distribution of a controlled dangerous substance (CDS), schedule II (crack cocaine), a violation of La.R.S. 40:967; in count two with manufacture of a CDS, schedule II (crack cocaine), a violation of La.R.S. 40:967; in count three with possession of a CDS, schedule II (crack cocaine), a violation of La.R.S. 40:967; in count four with possession of a firearm in the presence of a CDS, a violation of La.R.S. 14:95(E); in count five with possession of a firearm by a convicted felon, a violation of La.R.S. 14:95.1; in count six with simple possession of marijuana, first offense, a violation of La.R.S. 40:966; and in count seven with possession of drug paraphernalia, a violation of La.R.S. 40:1033.

A jury trial was held on November 8, 2010, on count one, distribution of a schedule II CDS, and Defendant was found guilty.1 Defendant was sentenced on December 22, 2010, to serve eight years at hard labor, two years without benefit of probation, parole, or suspension of sentence. Defendant was also ordered to pay a $1,000 fine, $500 to the public defender, and $150 to the crime lab. In default of payment, the trial court imposed an additional six months imprisonment. A motion to reconsider sentence was not filed.

[724]*724Defendant is now before this court on appeal to assert a single error. He argues that the evidence was insufficient to convict him of distribution of a CDS, schedule II (cocaine).

ERRORS PATENT

In accordance with La.Code Crim.P. art. 920, all appeals are reviewed by staff for errors patent on the face of the record. We find two.

12At the sentencing hearing, the trial court imposed the following sentence:

[Y]ou are sentenced to eight (8) years with the Louisiana Department of Corrections, two (2) years of which shall be served without benefit of probation, parole or suspension of sentence ... You’re further sentenced to pay to the Sheriff of Natchitoches Parish a fine of one thousand dollars ($1000) plus cost, five hundred ($500) for the public defender, and one hundred fifty dollars ($150.00) for the crime lab, in default of which serve an additional six (6) months in jail.

In State v. Moore, 98-1632 (La.App. 3 Cir. 5/4/94), 640 So.2d 561, 563, writ denied, 94-1455 (La.3/30/95), 651 So.2d 858, this court stated: “An illegal sentence is one not ‘authorized or directed by law.’ State v. Johnson, 220 La. 64, 55 So.2d 782 (1951).”

In State v. Frith, 561 So.2d 879 (La.App. 2 Cir.), writ denied, 571 So.2d 625 (La.1990), the defendant was convicted of simple burglary. He was sentenced to two years at hard labor and ordered to pay a fine in the amount of five hundred dollars, to pay one-hundred sixty-two dollars and fifty cents in restitution to the victim, three hundred dollars to the Indigent Defender Board, and all court costs. On appeal, on error patent review, the court held, in pertinent part:

Second, LSA-C.Cr.P. articles 895 and 895.1 authorize restitution and payment to the indigent defender program as a condition of probation only when the trial court suspends the imposition or execution of sentence. State v. Fluitt, 482 So.2d 906 (La.App. 2d Cir.1986); State v. Starks, 471 So.2d 1029 (La.App. 1st Cir.1985). In this case, the trial court did not suspend the two year hard labor sentence. For this reason, the portion of the sentence ordering restitution and payment to the indigent defender program is illegal. Therefore, we further correct the sentence to delete that portion ordering restitution and payment to the indigent defender program. C.Cr.P. art. 882.

Id. at 883. Cf. State v. Rideau, 05-1470 (La.App. 3 Cir. 11/2/06), 943 So.2d 559, writ denied, 06-2805 (La.9/14/07), 963 So.2d 395.

Louisiana Code of Criminal Procedure Article 895.1 provides, in pertinent part:

B. When a court suspends the imposition or the execution of a sentence and places the defendant on probation, it may in its |sdiscretion, order placed, as a condition of probation, an amount of money to be paid by the defendant to any or all of the following:
(1) To the indigent defender program for that court.
(3) To the sheriff and clerk of court for costs incurred.
(4) To a law enforcement agency for the reasonable costs incurred in arresting the defendant, in felony cases involving the distribution of or intent to distribute controlled dangerous substances.

In this case, the trial court did not suspend imposition or execution of Defendant’s sentence nor place him on probation. The trial court therefore lacked au[725]*725thority to order, as part of the principal sentence, that Defendant make payments to the sheriffs office, the indigent defender’s board, and the crime lab. Accordingly, we amend Defendant’s sentence, deleting the provisions regarding the payments to the sheriffs office, the indigent defender’s board, and the crime lab. The trial court is, hereby, instructed to note the amendment in the court minutes.

Additionally, the trial court erred in ordering, in the event of default of payment, Defendant to serve an additional six months in jail. In State v. Major, 03-249, p. 2 (La.App. 3 Cir. 3/2/05), 898 So.2d 548, 550-51 writ denied, 05-1716 (La.2/10/06), 924 So.2d 161, this court explained in pertinent part2:

It is well-settled that “[a]n indigent person may not be incarcerated because he is unable to pay a fine which is part of his sentence. Bearden v. Georgia, 461 U.S. 660, 103 S.Ct. 2064, 76 L.Ed.2d 221 (1983).” State v. Zabaleta, 96-2449, p. 1 (La.3/7/97), 689 So.2d 1369. The need for incarceration raises an issue when fines or costs are not paid, because La.Code Crim.P. art. 884 requires that, when a trial court imposes a fine or costs, it must also impose a specified term of imprisonment in the event the defendant defaults on payment of the fine or costs. Because an indigent person may not be incarcerated for failure to pay a fine, the supreme court has vacated “the portion of ... [a] sentence which provides for a jail term in the event of default of payment of a fine.... ” Zabaleta, 689 So.2d 1369.

|4It appears Defendant is indigent. During the pre-trial, trial, and sentencing proceedings, he was represented by an appointed attorney, and on appeal, he is represented by the Louisiana Appellate Project. This court finds these facts are presumptive evidence of indigence. See State v. Devare, 03-610 (La.App. 5 Cir. 10/28/03), 860 So.2d 191 and State v. Jones, 535 So.2d 3 (La.App. 4 Cir.1988). We recognize that this court’s action of deleting the payments discussed above, renders this part of Defendant’s sentence moot. Nevertheless, for the sake of clarity we also delete that portion of the sentence, and hereby, instruct the trial court to note the amendment in the court minutes.

ASSIGNMENT OF ERROR

In his sole assignment, Defendant argues that the evidence is insufficient to convict him of distribution of a CDS, schedule II (cocaine).

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Bluebook (online)
84 So. 3d 722, 11 La.App. 3 Cir. 688, 2012 WL 280612, 2012 La. App. LEXIS 106, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-duke-lactapp-2012.