State v. Francois

884 So. 2d 658, 2004 WL 2189107
CourtLouisiana Court of Appeal
DecidedSeptember 14, 2004
Docket2002-KA-2056
StatusPublished
Cited by8 cases

This text of 884 So. 2d 658 (State v. Francois) 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. Francois, 884 So. 2d 658, 2004 WL 2189107 (La. Ct. App. 2004).

Opinion

884 So.2d 658 (2004)

STATE of Louisiana
v.
Ronnie L. FRANCOIS and Ricky M. Kemp.

No. 2002-KA-2056.

Court of Appeal of Louisiana, Fourth Circuit.

September 14, 2004.

*660 Eddie J. Jordan, Jr., District Attorney of Orleans Parish, Claire A. White, Assistant District Attorney of Orleans Parish, New Orleans, LA, for Plaintiff/Appellee.

Karen G. Arena, Louisiana Appellate Project, Metairie, Louisiana, for Defendant/Appellant (Ronnie L. Francois).

Mary Constance Hanes, Louisiana Appellate Project, New Orleans, LA, for Defendant/Appellant (Ricky M. Kemp).

(Court composed of Judge PATRICIA RIVET MURRAY, Judge DAVID S. GORBATY, and Judge ROLAND BELSOME).

PATRICIA RIVET MURRAY, Judge.

This case is before us on remand from the Louisiana Supreme Court. In our earlier decision in this matter, we reversed the convictions of defendants, Ronnie L. Francois and Ricky M. Kemp, finding the evidence insufficient. State v. Francois, 2002-2056 (La.App. 4 Cir. 4/9/03), 844 So.2d 2056. The Louisiana Supreme Court reversed our decision, reinstated the convictions, and remanded for us to consider the pro se assignments of error asserted by Mr. Francois, which we did not consider in our earlier decision. State v. Francois, XXXX-XXXX (La.4/14/04), 874 So.2d 125. For the reasons that follow, we vacate Mr. Francois' adjudication and sentencing as a fourth felony habitual offender and remand for his resentencing as a third felony habitual offender.[1]

At the outset, we find the record reflects a patent error in the trial court's adjudication of Mr. Francois as a fourth felony habitual offender. The record reflects that the multiple bill included as one of Mr. Francois' alleged prior felony convictions a crime committed by his co-defendant, Mr. Kemp. Particularly, the multiple bill includes a February 4, 1991, conviction in case # 344-981 "C". In that case, the co-defendant, Mr. Kemp, pled guilty to possession of cocaine. The State's inclusion of that 1991 offense in Mr. Francois' multiple bill was an obvious oversight.

At the multiple bill hearing, the State introduced evidence regarding another 1991 offense that apparently did involve Mr. Francois. Specifically, it introduced documentation for a 1991 conviction for theft of goods valued at over $100 and less than $500 in case # 347-752 "E". That 1991 offense was not listed in the multiple bill and thus cannot be considered. Although a habitual offender bill does not charge a new crime but rather only is a method of increasing the punishment of a multiple offender, "[i]t is essential that the prior conviction(s) be formally charged in *661 order to sentence a defendant as a multiple offender." State v. Donahue, 572 So.2d 255, 261 (La.App. 1 Cir.1990)(citing State v. Hingle, 242 La. 844, 139 So.2d 205, 206 (1961)). Accordingly, we find it was patently erroneous for the trial court to sentence Mr. Francois as a fourth felony habitual offender based upon either a prior felony conviction involving his co-defendant or a prior felony conviction as to which he was not specifically informed in the instant habitual offender bill of information.

Turning to Mr. Francois' pro se assignments of error, he alleges the following five errors:

1. The evidence adduced in the multiple bill hearing is insufficient to prove beyond a reasonable doubt that the appellant is a fourth felony offender, since there was no evidence adduced to identify the appellant as the person "convicted" in any of the prior felony cases alleged in the multiple bill.
2. The trial court erred in finding the appellant to be a fourth felony offender on the basis of three prior felony convictions for which the State failed to introduce any evidence of the discharge date for the sentences imposed in the alleged prior cases, and where the discharge dates are pertinent to a finding of appellant as a multiple offender under R.S. 15:529.1.
3. The trial court erred in finding the appellant to be a fourth felony offender on the basis of three alleged prior felony convictions, two of which are alleged to have resulted from guilty pleas, and where the prosecutor failed to offer any contemporaneous record taken during those guilty pleas and which evidences a valid waiver of the appellant's Boykin rights.
4. The appellant was denied his constitutional right to effective assistance of counsel where his attorney allowed officer Jay Jacquet to testify that fingerprints the officer obtained from the appellant in open court matched fingerprints he observed on arrest registers he brought with him to court for the multiple bill hearing, and where officer Jacquet was not properly qualified by the court as an expert in fingerprint analysis.
5. The trial court abused his discretion in qualifying officer Jay Jacquet as an expert in fingerprint analysis without hearing any testimony regarding the witnesses' education, training and experience in the field. Thus, all expert testimony regarding the comparison of fingerprints must be excluded.

As to the first assignment, Mr. Francois argues that the evidence was insufficient to convict him under the multiple bill. He argues that there was no evidence adduced to identify him as the person convicted in any of the prior felony cases alleged in the multiple bill. The State has the burden of proving the prior felony offenses and that the defendant was the same person convicted of those offenses. State v. Neville, 96-0137, p. 7 (La.App. 4 Cir. 5/21/97), 695 So.2d 534, 538-39. Various methods are available to prove that the defendant is the same person convicted of the prior felony offense, including testimony from witnesses, expert opinion regarding the fingerprints of the defendant when compared with those in the prior record, or photographs in the duly authenticated record. State v. Henry, 96-1280 (La.App. 4 Cir. 3/11/98), 709 So.2d *662 322.[2]

Mr. Francois' multiple bill alleged that he was found guilty on March 9, 1992, of theft of goods valued at more than $100 and less than $500 in case #352-559 "I"; that he pled guilty to possession of cocaine on February 4, 1991, in case # 344-981 "C"; and that he pled guilty on November 25, 1985, to theft of goods valued at more than $100 and less than $500 in case #308-847 "E". At the hearing, the State offered the testimony of Officer Jay Jacquet, who the parties stipulated to be an expert in fingerprint identification. Officer Jacquet testified that he had been qualified as an expert in fingerprint analysis and identification in every section of Civil District Court and one section of Criminal District Court. Officer Jacquet testified that he took Mr. Francois' finger-prints on the morning of the hearing.

The State introduced the certified packet of the 1992 conviction that contained a bill of information, the docket master, the minute entry, and the arrest register. The fingerprints matched those on the arrest register.[3] The State then introduced the certified packet of the 1985 conviction that contained the bill of information, the guilty plea form, the minute entry, and the arrest register. Again, the fingerprints matched.

Mr. Francois argues that the bills of information should have had his fingerprints on them in order to prove he was the same defendant convicted of the earlier crimes and that the fingerprints on the arrest register do not meet the La. R.S. 15:529.1 criteria. This court, however, held in State v. Wolfe, 99-0389 (La.App. 4 Cir.

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Cite This Page — Counsel Stack

Bluebook (online)
884 So. 2d 658, 2004 WL 2189107, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-francois-lactapp-2004.