State v. Welch

Supreme Court of Louisiana

State v. Welch

462 So. 2d 183, 1985 La. LEXIS 7837

Supreme Court of Louisiana·Decided January 18, 1985·No. No. 84-KA-1530·Published·Cited by 1 cases

Opinion

PER CURIAM.

Defendant’s conviction for second-degree murder in violation of La.R.S. 14:30.1 is affirmed. We agree with counsel, however, that the penalty imposed by the trial court of life imprisonment at hard'labor without benefit of “parole, probation, commutation or dimunition of sentence for a period of 40 years” is illegal and must be set aside. Cf, La.C.Cr.P. art. 882. This Court has consistently held under both La. Const. 1921, Art. V, § 10 and La. Const. 1974, Art. IV, § 5 that “[gubernatorial pardon or commutation, constitutionally permitted, may not be precluded by the terms of an imposed sentence.” State v. Williams, 338 So.2d 672, 678 (La.1976); State v. Lewis, 343 So.2d 732 (La.1977); State v. Spotville, 308 So.2d 763 (La.1975); State v. Varice, 292 So.2d 703 (La.1974).

Defendant’s sentence is therefore amended; the words “commutation or diminution of sentence” are removed. In all other respects, the sentence imposed by the trial judge is affirmed.

CONVICTION AFFIRMED; SENTENCE AMENDED AND AS AMENDED AFFIRMED.

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PER CURIAM.

Defendant’s conviction for second-degree murder in violation of La.R.S. 14:30.1 is affirmed. We agree with counsel, however, that the penalty imposed by the trial court of life imprisonment at hard'labor without benefit of “parole, probation, commutation or dimunition of sentence for a period of 40 years” is illegal and must be set aside. Cf, La.C.Cr.P. art. 882. This Court has consistently held under both La. Const. 1921, Art. V, § 10 and La. Const. 1974, Art. IV, § 5 that “[gubernatorial pardon or commutation, constitutionally permitted, may not be precluded by the terms of an imposed sentence.” State v. Williams, 338 So.2d 672, 678 (La.1976); State v. Lewis, 343 So.2d 732 (La.1977); State v. Spotville, 308 So.2d 763 (La.1975); State v. Varice, 292 So.2d 703 (La.1974).

Defendant’s sentence is therefore amended; the words “commutation or diminution of sentence” are removed. In all other respects, the sentence imposed by the trial judge is affirmed.

CONVICTION AFFIRMED; SENTENCE AMENDED AND AS AMENDED AFFIRMED.

State v. Welch, 462 So. 2d 183, 1985 La. LEXIS 7837 (La. 1985).

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Opinion

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