State v. McCalvin

438 So. 2d 209, 1983 La. LEXIS 11509

Opinion

PER CURIAM.

Footnotes

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Defendant was charged by bill of information with distribution of marijuana in violation of La.R.S. 40:966. The prosecution arose out of his sale of three marijuana cigarettes for one dollar apiece to an undercover agent in the Jackson Square area of New Orleans. On June 2, 1982, after trial by jury in which defendant admitted distributing the marijuana but denied receiving payment, he was found guilty as charged. On June 25, 1982, the trial court then sentenced him to ten (10) years’ imprisonment at hard labor, the maximum term for the offense. Defendant has now appealed his conviction and sentence to this Court challenging the penalty imposed by the trial judge as excessive.

At sentencing on June 25, 1982, the trial court noted that defendant had been convicted on three prior occasions “... involving unlawful use of marijuana including distribution of marijuana on March 31, 1981...” and that, accordingly, “... a lesser sentence would deprecate the seriousness of [his] crime.” The trial court did not, however, order a presentence investigation, and its only apparent source of information was defendant’s testimony from the stand that he had been convicted on several prior occasions of possessory marijuana offenses. Nevertheless, under cross examination, defendant flatly denied that he had been previously convicted of distribution of marijuana and the state did not prove otherwise at trial.

We agree with counsel that the present record does not support the trial court’s view of defendant’s prior convictions and that the apparent mistake may have influenced the exercise of the court’s sentencing discretion. Cf., State v. Schaeffer, 414 So.2d 730 (La.1982); State v. Rayford, 403 So.2d 704 (La.1981). Accordingly, defendant’s conviction is affirmed, but his sentence is vacated and the case remanded to the trial court for resentencing in accord with the law.

CONVICTION AFFIRMED; SENTENCE VACATED AND CASE REMANDED FOR RESENTENCING.

BAILES, J., sitting for MARCUS, J.