State v. Townley

657 So. 2d 129, 1995 WL 254780
CourtLouisiana Court of Appeal
DecidedMay 3, 1995
DocketCR94-1002
StatusPublished
Cited by8 cases

This text of 657 So. 2d 129 (State v. Townley) 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. Townley, 657 So. 2d 129, 1995 WL 254780 (La. Ct. App. 1995).

Opinion

657 So.2d 129 (1995)

STATE of Louisiana
v.
James R. TOWNLEY.

No. CR94-1002.

Court of Appeal of Louisiana, Third Circuit.

May 3, 1995.
Rehearing Denied September 14, 1995.

*130 Robert Richard Bryant Jr., Paul Peter Reggie, Lake Charles, for State.

John Lavern, Lake Charles, for James R. Townley. James R. Townley, pro se.

Before KNOLL, COOKS and PETERS, JJ.

*131 PETERS, Judge.

The defendant, James R. Townley, was tried by jury and convicted of simple escape in violation of La.R.S. 14:110(A)(1). Thereafter, he was adjudicated an habitual offender and sentenced to serve five years at hard labor with the sentence to run consecutive to any prior sentence imposed. He has appealed the sentence. The record contains four assignments of error. However, in his brief the defendant raises two additional assignments.

DISCUSSION OF RECORD

Prior to the commission of the offense of simple escape, the defendant had been convicted of four felonies:

1. Simple burglary of a pharmacy in violation of La.R.S. 14:62.1.
2. Simple burglary, three counts, in violation of La.R.S. 14:62.
3. Simple burglary in violation of La.R.S. 14:62.
4. Simple criminal damage to property in violation of La.R.S. 14:56.

The first two convictions occurred on May 11, 1984, and the second two on March 2, 1988.

On June 6, 1988, the defendant escaped from the custody of the Louisiana Department of Corrections while serving sentences imposed for the convictions of March 2, 1988. He was apprehended on June 24, 1988, and charged with simple escape. Thereafter, he was convicted of that offense and, after contradictory hearing pursuant to La.R.S. 15:529.1(D)(2)(b), adjudicated a third felony offender. He was then sentenced to serve five years at hard labor with the sentence to run consecutive to the sentences he was already serving.

Thereafter, a plethora of writs and motions were considered on the trial level, but only one affects the issue before us. In State v. Townley, 627 So.2d 252 (La.App. 3 Cir.1993), writ denied, 93-3011 (La. 2/4/94); 633 So.2d 169, this court concluded, in a majority opinion, that because the convictions of March 2, 1988, were not final at the time the defendant committed the offense of simple escape, they could not be used for enhancement purposes under La.R.S. 15:529.1.

On remand, the defendant was again sentenced to five years at hard labor with the sentence to run consecutive to any prior sentence imposed. He was ultimately granted an out-of-time appeal on that sentence, and the matter is currently before us.

OPINION

Assignment of Error No. 1.

The defendant first argues that the trial court erred in sentencing him as an habitual offender based on an oral bill of information. However, the record reflects that a written habitual offender bill of information was filed by the state on October 14, 1988, and the defendant was not originally sentenced until October 17, 1989. The sentence that is before this court now was not rendered until March 11, 1994. Therefore, this assignment is without merit.

Assignment of Error No. 2.

The defendant next contends his sentence constitutes a multiple enhancement of the penalty against him because the conviction of simple escape was the basis for the habitual offender adjudication. We also find that this assignment is without merit.

The defendant relies on State v. Cox, 344 So.2d 1024 (La.1977), which held that a conviction for simple escape could not be employed in seeking to have a defendant declared an habitual offender under La.R.S. 15:529.1. At the time of the Cox decision, La.R.S. 14:110 drew a distinction between one who escaped while in custody for committing a felony and one who escaped while in custody for committing a misdemeanor. In the former case, the simple escape was a felony and in the latter, it was a misdemeanor. As recognized in State v. Goodin, 550 So.2d 801 (La.App. 2 Cir.1989), writ denied, 556 So.2d 1276 (La.1990), Act 413 of 1985 amended the simple escape statute to eliminate the confinement distinction and make the crime of simple escape a felony regardless of whether confinement was for a felony or misdemeanor.

*132 In addressing this issue, the first circuit in State v. Harrelson, 590 So.2d 1240, 1242 n.1 (La.App. 1 Cir.1991) stated:

Subsequent to the decision in Cox, the simple escape statute was amended by Act 413 of 1985. The effect of the amendment is to make the crime of simple escape punishable by imprisonment with or without hard labor and, therefore, a felony. After the amendment, the penalty for simple escape is no longer enhanced because of a previous felony conviction. The crime of simple escape is itself a separate and distinct felony, the penalty for which is unrelated to any previous felony conviction. It follows that enhancement of the penalty for simple escape under the habitual offender statute does not amount to a multiple enhancement of the penalty for that offense or any previous offense. Although the Cox rationale is sound and may be applicable to other multiple enhancement situations, it is no longer applicable in regard to the simple escape statute.
(Emphasis added).

Thus, the court in Harrelson concluded that the conviction of simple escape could be used to apply the provisions of La.R.S. 15:529.1. We agree that the rationale of Cox is no longer applicable to a conviction for simple escape and the use of the habitual offender statute does not amount to a multiple enhancement of the penalty as contemplated in Cox.

In response to this assignment, the state argues in brief that the defendant is attempting to raise a double jeopardy defense. We do not find that to be the case, but even assuming such an argument, our decision on this assignment would be the same. Double jeopardy principles do not apply to the habitual offender statute as it is an enhancement provision rather than a separate felony. State v. Hongo, 625 So.2d 610 (La.App. 3 Cir.1993), writ denied, 93-2774 (La. 1/13/94); 631 So.2d 1163.

Assignment of Error No. 3.

The defendant contends the trial court failed to inform him of the three year prescriptive period provided for in La.Code Crim.P. art. 930.8 relative to applications for post-conviction relief. This article provides in pertinent part:

A. No application for post conviction relief, including applications which seek an out-of-time appeal, shall be considered if it is filed more than three years after the judgment of conviction and sentence has become final under the provisions of Article 914 or 922....
. . . .
C. At the time of sentencing, the trial court shall inform the defendant of the prescriptive period for post conviction relief.

As noted by the state in brief, the defendant is clearly aware of his rights under this Article as he addressed the matter in his brief. However, to assure that the record is complete and the defendant's procedural rights are fully protected, the district court is hereby directed to inform the defendant of the provisions of this Article by sending the appropriate written notice to the defendant within ten days of the rendition of this opinion and to file written proof that the defendant received the notice in the record of these proceedings. State v. Fontenot, 616 So.2d 1353 (La.App. 3 Cir.),

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Bluebook (online)
657 So. 2d 129, 1995 WL 254780, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-townley-lactapp-1995.