State v. Jackson

519 So. 2d 254, 1988 WL 2710
CourtLouisiana Court of Appeal
DecidedJanuary 11, 1988
Docket87-KA-405
StatusPublished
Cited by4 cases

This text of 519 So. 2d 254 (State v. Jackson) 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. Jackson, 519 So. 2d 254, 1988 WL 2710 (La. Ct. App. 1988).

Opinion

519 So.2d 254 (1988)

STATE of Louisiana
v.
Bobby JACKSON.

No. 87-KA-405.

Court of Appeal of Louisiana, Fifth Circuit.

January 11, 1988.
Rehearing Denied February 17, 1988.

*255 Bruce G. Whittaker, Indigent Defender Bd., Gretna, for relator (defendant-appellant).

Dorothy A. Pendergast, Gretna, for respondent (plaintiff-appellee).

Before GRISBAUM, DUFRESNE and GOTHARD, JJ.

GRISBAUM, Judge.

This matter arises out of our granting a writ of review concerning a plea of guilty of driving while intoxicated (DWI) pursuant to State v. Crosby. We reverse and remand for further proceedings.

FACTS

The record shows the defendant, Bobby Jackson, was operating his 1983 Oldsmobile when he was involved in a traffic accident. At the scene of the accident, an officer administered a field sobriety test to the defendant. Upon failing the test, he was placed under arrest, read his rights, and transported to the Jefferson Parish Correctional Center where he was placed on a video tape (No. 001329) and given an intoxilyzer 5000 test. The results showed a blood alcohol concentration level of .17g%.

PROCEDURAL HISTORY

On December 30, 1986, traffic citations were issued to the defendant for driving while intoxicated, La.R.S. 14:98, and for failure to maintain control of his motor vehicle, La.R.S. 32:58. A bill of information charging the defendant with the aforementioned offenses was subsequently filed. It is the driving while intoxicated charge which is the subject of the instant appeal.[1]

Arraignment was held on January 26, 1987, at which time the defendant entered a plea of not guilty. Several pretrial motions were filed, including a Motion to Produce. On March 4, 1987, the trial judge denied the defendant's motion requesting the State to produce copies of the log book. The defendant also filed a Motion to Suppress[2] regarding the results of the breath analysis machine based on the following grounds:

a) The right[s] form for the breath analysis machine threatens loss of license for consulting an attorney when no such law has been promulgated by the legislative bodies of the State of Louisiana and the Department of Public Safety does not have the authority to create such a law;

b) The document certifying the proper functioning of the breath analysis machine does not conform with the requirements set forth in the Louisiana Register with regards to inspecting said machine. [sic]

c) The State did not follow the proper procedure in operating the machine in that the breath analysis machine check list was not properly followed, the operator was not licensed to operate the machine[,] and the inspection of the machine had not been done timely or by a properly trained technician, [sic]

On March 4, 1987, the trial judge denied the motion.

Following these denials, the defendant withdrew his former plea of not guilty and entered a plea of guilty pursuant to State v. Crosby, 338 So.2d 584 (La.1976), reserving his right of review. In sentencing the defendant, the trial judge states, "You are ordered to report to the probation department. When you complete the probation I won't impose a jail sentence. Your fine *256 will depend on how well you do in the program."[3]

On May 17, 1987, this Court granted defendant's writ of review and ordered that the matter be docketed by established appellate procedure.

ISSUES

The defendant has designated three specific assignments of error; however, because this matter was placed on an appellate posture for review, we have examined the record for patent error pursuant to La.C.Cr.P. art. 920 and have found the following errors which warrant reversal.

For the purpose of an error patent review, the "record" in a criminal case includes the caption, the time and place of holding court, the indictment or information and the endorsement thereon, the arraignment, the plea of the accused, the bill of particulars filed in connection with a short form indictment or information, the mentioning of the impaneling of the jury, the minute entry reflecting sequestration in a capital case, the verdict and the judgment or sentence. State v. Oliveaux, 312 So.2d 337 (La.1975) and State v. Agee, 508 So.2d 1033 (La.App. 5th Cir.1987).

Where the conviction has been obtained by a plea of guilty, the issue of whether the accused was properly "Boykinized" also constitutes a proper inquiry in an error patent review. State v. Godejohn, 425 So. 2d 750 (La.1983); State v. Martinez, 472 So.2d 123 (La.App. 5th Cir.1985).

THE PLEA

In Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), the United States Supreme Court noted three federal constitutional rights which are waived by a guilty plea and declared that it would not presume waiver of these rights from a silent record. The rights in question are the privilege against self-incrimination, the right to a trial by jury, and the right to confront one's accusers. The Louisiana Supreme Court adopted Boykin and held that it applied to all pleas of guilty subsequent to December 8, 1971. State ex rel. Jackson v. Henderson, 260 La. 90, 255 So.2d 85 (1981); State ex rel. LeBlanc v. Henderson, 261 La. 315, 259 So.2d 557 (1972).

The Louisiana Supreme Court discussed Boykin and its application to misdemeanor guilty pleas in State v. Jones, 404 So.2d 1192, 1196 (La.1981), stating

[W]henever a misdemeanor guilty plea will be used as a basis for actual imprisonment, enhancement of actual imprisonment or conversion of a subsequent misdemeanor into a felony, it is incumbent upon the trial judge to 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; (c) his right to confront his accusers, and to make sure that the accused has a full understanding of what the plea connotes and of its consequence. See State ex rel. Jackson v. Henderson, supra, 260 La. at 101, 103 [255 So.2d 85].

Judge Edward A. Dufresne, Jr. of this Circuit interpreted State v. Jones, supra, in the unrelated recent decision State v. Jones, 517 So.2d 402 (La.App. 5th Cir.1987) by stating

While the Supreme Court in Jones, [sic] did not specifically address whether pleas entered without a contemporaneous Boykin colloquy were patently defective, in subsequent cases, pleas entered without "boykinization" have been referred to as "invalid". See State v. Moore, 410 So.2d 237 (La.1981); State v. Moore, 408 So.2d 1220 (La.1982).
Because, in a D.W.I. prosecution, the defendant's guilty plea is usually used as a basis for a sentence of imprisonment, albeit suspended, and can be used for the enhancement of the sentence of a second offender and/or for conversion of a subsequent prosecution into a felony, we hold that a contemporaneous Boykin colloquy *257 is mandated by the Supreme Court's decision in State v. Jones, supra.
The record in the present case reveals that the defendant was not properly "boykinized" before his plea was accepted.

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Bluebook (online)
519 So. 2d 254, 1988 WL 2710, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-jackson-lactapp-1988.