State v. King

969 So. 2d 1228, 2007 WL 2994592
Supreme Court of Louisiana·Decided October 16, 2007·No. 2006-K-1903·Published·Cited by 39 cases

Opinion

969 So.2d 1228 (2007)

STATE of Louisiana
v.
Jack KING.

No. 2006-K-1903.

Supreme Court of Louisiana.

October 16, 2007.
Rehearing Denied January 7, 2008.

Charles C. Foti, Jr., Attorney General, Paul Carmouche, District Attorney, Catherine Marion Estopinal, Assistant District Attorney, for applicant.

Ellis & Ellis, Carey J. Ellis, III, Alexandria, Louisiana Appellate Project, Sherry Watters, New Orleans, for respondent.

WEIMER, Justice.

Writ was granted in this matter to resolve a split in the circuits as to whether the five-year sentence enhancement provision of LSA-R.S. 14:64.3[1] should be imposed upon a defendant convicted of armed robbery with a firearm pursuant to LSA-R.S. 14:64[2] when the defendant is adjudicated a habitual offender and sentenced under the provisions of LSA-R.S. 15:529.1.[3]

*1229 For reasons that follow, we vacate the portion of the court of appeal opinion, amending defendant's sentence, which deleted the additional five years imposed by the trial court pursuant to LSA-R.S. 14:64.3. Thus, defendant's sentence of 198 years is to be followed by a consecutive sentence of five years.[4]

FACTS AND PROCEDURAL BACKGROUND

The facts are not in dispute. On May 18, 2004, the defendant entered the customer line at a Hibernia Bank branch in Shreveport, Louisiana. He handed the teller a pillowcase, displayed a portion of his gun, and demanded money. The teller placed at least $5,000 into the pillowcase along with a dye pack which exploded after the defendant left the bank. A customer chased the defendant, forced him to the ground, and held him until the police arrived.

Defendant was charged with one count of armed robbery with a firearm pursuant to LSA-R.S. 14:64 and LSA-R.S. 14:64.3. At trial, defendant testified and admitted the facts of the crime. A unanimous jury found the defendant, Jack King, guilty as charged of armed robbery using a firearm.

The state subsequently filed a habitual offender bill of information seeking to have defendant declared a second felony offender. Defendant filed a pro se motion to quash. Following a hearing, the trial court found King to be a second felony offender and sentenced him to 203 years at hard labor with credit for time served. The trial court denied the motion to reconsider sentence.

King appealed, arguing the State failed to comply with the requirements necessary to adjudicate him a second felony offender under the habitual offender law and the trial court erred in imposing an excessive sentence.

The appellate court affirmed King's conviction and concluded the sentence was not constitutionally excessive. However, the appellate court found the sentence illegal in that the trial court imposed the five-year enhanced penalty pursuant to LSA-R.S. 14:64.3 in addition to the maximum sentence allowable under the habitual offender provision. State v. King, 41,083 (La.App. 2 Cir. 6/28/06), 935 So.2d 354.

Citing State v. White, 39,634 (La.App. 2 Cir. 6/16/05), 907 So.2d 180, writ denied, 05-2097 (La.3/10/06), 925 So.2d. 510, the court reasoned that a sentence under the *1230 habitual offender law effectively replaces the sentence for the underlying crime. The court further reasoned that once the State chose to proceed under the habitual offender law to adjudicate King a second felony offender, he could only be sentenced pursuant to the habitual offender law. Finding the imposition of the additional five years under LSA-R.S. 14:64.3 resulted in an illegal sentence, the appellate court amended the sentence to delete the additional five years.[5]

Additionally, the court of appeal noted that the sentence was illegally lenient in that the trial court failed to order the sentence be served without benefit of probation or suspension of sentence as required by LSA-R.S. 15:529.1(G). The trial court's failure to state that the sentence will be served without benefit is automatically corrected by operation of law. LSA-R.S. 15:301.1. Thus, the court reasoned, King's 198-year sentence is to be served without the benefit of probation or suspension of sentence.

The State's writ application was granted in this matter to address the split in the circuits as to whether the additional five-year sentence provided by LSA-R.S. 14:64.3 could be imposed when the defendant is sentenced pursuant to the habitual offender law. State v. King, 06-1903 (La.4/27/07), 955 So.2d 670.

DISCUSSION

The State contends the court of appeal erred by amending defendant's sentence to delete the five-year sentencing enhancement provision imposed by the trial court pursuant to LSA-R.S. 14:64.3. The State further argues the White decision relied on by the second circuit conflicts with decisions of other circuits, specifically State v. Bonit, 05-0795 (La.App.1Cir.2/10/06), 928 So.2d 633, writ denied, 06-1211 (La.3/16/07), 952 So.2d 688, and State v. Lewis, 03-1234 (La.App. 4 Cir. 6/2/04) 876 So.2d 912, writ denied, 04-1855 (La.11/24/04), 888 So.2d 229.[6] The State contends Judge Williams' dissent in White is correct and the trial court's sentence should be affirmed.

The majority in White found error patent regarding the sentence imposed. The court reasoned the applicable sentence under the habitual offender law effectively replaces the sentence for the underlying crime under LSA-R.S 14:64 and 14:64.3. The court found the imposition of the additional five years under LSA-R.S. 14:64.3 was erroneous and resulted in an illegal sentence. The court amended the sentence to delete the additional five years. White, 39,634 at 6, 907 So.2d at 183.

In dissent, Judge Williams noted the lack of authority cited by the majority to support its conclusion that the five-year penalty is "replaced" by a habitual offender sentence. Citing Lewis and State v. *1231 Williams, 34,369 (La.App. 2 Cir. 2/28/01), 781 So.2d 673,[7] Judge Williams further noted "our courts have affirmed the district courts' imposition of the five-year penalty in addition to a habitual offender sentence." White, 39,634 at 1, 907 So.2d at 184.

In Bonit, the first circuit declined to follow the reasoning of the majority in White. The court noted it is not a crime to be a habitual offender and the purpose of the habitual offender statute is to increase the sentence for a recidivist. Following a finding that a defendant is a habitual offender, the penalty increase is computed by reference to the sentencing provisions of the underlying offense. Because the dangerous weapon used in the commission of the armed robbery was a firearm, the court found that Bonit violated two statutes, LSA-R.S. 14:64 and LSA-R.S. 14:64.3. Therefore, the court reasoned the defendant's sentence was subject to an additional period of five years without benefit of parole, probation, or suspension of sentence to be served consecutively to the sentence imposed under the provisions of LSA-R.S. 14:64 as enhanced by the habitual offender law. Bonit, 05-0795 at 13-15, 928 So.2d at 641-643.

In Lewis, the fourth circuit affirmed defendant's convictions and sentences. Defendant was charged with one count of attempted armed robbery and one count of attempted second degree murder in connection with crimes perpetrated against one individual. He was also charged with one count of armed robbery and a second count of attempted second degree murder in connectio

Free access — add to your briefcase to read the full text and ask questions with AI

State v. King, 969 So. 2d 1228, 2007 WL 2994592 (La. 2007).

969 So. 2d 1228 (State v. King) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Related

State of Louisiana v. Christopher Raymond Diano
Supreme Court of Louisiana, 2025
State Of Louisiana v. Reyhane Tyrone McKnight
Louisiana Court of Appeal, 2024
State v. Bell
169 So. 3d 574 (Louisiana Court of Appeal, 2015)
State v. Briley
151 So. 3d 633 (Louisiana Court of Appeal, 2014)
State v. Simms
143 So. 3d 1258 (Louisiana Court of Appeal, 2014)
State v. Acker
111 So. 3d 535 (Louisiana Court of Appeal, 2013)
State of Louisiana v. Ronald G. Acker, Jr.
Louisiana Court of Appeal, 2013
State v. Rodriguez
112 So. 3d 402 (Louisiana Court of Appeal, 2013)
State v. Kamau
131 So. 3d 871 (Louisiana Court of Appeal, 2012)
State v. Billingsley
86 So. 3d 872 (Louisiana Court of Appeal, 2012)
State of Louisiana v. Kenneth G. Billingsley
Louisiana Court of Appeal, 2012
State v. Sam
88 So. 3d 587 (Louisiana Court of Appeal, 2012)
State v. Scie
83 So. 3d 1082 (Louisiana Court of Appeal, 2011)
State v. Booker
70 So. 3d 818 (Louisiana Court of Appeal, 2011)
State v. Camp
59 So. 3d 548 (Louisiana Court of Appeal, 2011)
State v. Robinson
57 So. 3d 1107 (Louisiana Court of Appeal, 2011)
State v. Preston
40 So. 3d 1052 (Louisiana Court of Appeal, 2010)
State v. George
39 So. 3d 671 (Louisiana Court of Appeal, 2010)
State v. Holden
30 So. 3d 1053 (Louisiana Court of Appeal, 2010)