State v. White

799 So. 2d 1165, 2001 WL 1335969
Louisiana Court of Appeal·Decided October 31, 2001·No. 35,235-KA·Published·Cited by 6 cases

Opinion

799 So.2d 1165 (2001)

STATE of Louisiana, Appellee,
v.
Travis WHITE, Appellant.

No. 35,235-KA.

Court of Appeal of Louisiana, Second Circuit.

October 31, 2001.
Rehearing Denied November 29, 2001.

*1167 Steven A. Hansen, Monroe, Counsel for Appellant.

Richard Ieyoub, Attorney General, Jerry Jones, District Attorney, Charles Brumfield, Assistant District Attorney, Counsel for Appellee.

Before GASKINS, KOSTELKA and DREW, JJ.

GASKINS, Judge.

The defendant, Travis White, was charged with simple robbery, conspiracy to commit simple robbery, and second degree battery. After his motion to quash one of the charges was denied, the defendant entered a Crosby plea on all three charges. He was sentenced to seven years for simple robbery, five years for second degree battery, and three and one half years for conspiracy to commit simple robbery; the trial court ordered that the sentences be served consecutively. The defendant now appeals. We affirm his convictions. However, we vacate his sentences and remand the matter for imposition of determinate sentences.

FACTS

On August 28, 2000, the defendant, along with Robert Jones and Anthony Lawson, made plans to rob the Bonne Idee Water Service Office in Mer Rouge, Louisiana. They drove to the office and waited until no customers were present. Wearing masks and gloves, the defendant and Jones went into the office where Jones grabbed a briefcase. When the victim, the only employee present at the office, began to scream, the defendant attacked her, beating her to the floor with blows to the face and head. Jones ran from the office with the briefcase, while the defendant continued to attack the victim. The defendant then ran from the office, and the three conspirators fled in a vehicle driven by Lawson. Upon discovering that the briefcase contained no money, the defendant threw it into a roadside ditch.

The victim attempted to call 911 after the suspects fled; however, the telephone lines had been ripped out by the perpetrators. She then drove to the police station to report the incident. The victim was taken to the hospital; she underwent reconstructive surgery for severe injuries to her face and jaw. A police investigation led to the defendant and his two co-conspirators, all of whom confessed.

Following his arrest for simple robbery, conspiracy to commit simple robbery, and second degree battery, the defendant filed *1168 a motion to quash the second degree battery charge on double jeopardy grounds.[1] The motion was denied. Thereafter, the defendant pled guilty to all three charges, but preserved his rights to appeal the denial of his motion to quash under State v. Crosby, 338 So.2d 584 (La.1976). The defendant received consecutive sentences of seven years for simple robbery, five years for second degree battery, and three and one half years for conspiracy to commit simple robbery. The defendant's motion to reconsider sentence was denied.

The defendant now appeals.

MOTION TO QUASH

By this assignment, the defendant contends the trial court erred in refusing to quash the indictment charging both simple robbery and second degree battery, claiming the indictment violated the double jeopardy provisions of the Louisiana and United States Constitutions. The defendant argues that if the state intended to try him for the crime of simple robbery, the charge of second degree battery should have been quashed. The defendant complains that he was accused of taking a briefcase from the victim and committing the act of second degree battery during the course of the robbery. The defendant claims that the state used the battery to prove the element of force necessary to establish simple robbery, thereby, causing multiple punishments for the same criminal act.

The state asserts that appellant could have been convicted of the simple robbery without having to show the battery occurred, and he could have been convicted of the second degree battery without having to show proof that the robbery ever took place. The state maintains that the crimes to which appellant entered pleas of guilty were separate and distinct from each other.

Law

Both the Fifth Amendment to the United States Constitution and Article 1, § 15 of the Louisiana Constitution guarantee that no person shall be twice placed in jeopardy for the same offense. The purpose of these provisions is to protect a person from a second prosecution after he has already been acquitted or convicted of that offense and also to protect an accused against multiple punishment for the same conduct. State v. Vaughn, 431 So.2d 763 (La.1983).

Louisiana uses both the "Blockburger test" and the "same evidence test" in determining whether double jeopardy exists. La.C.Cr.P. art. 596; State v. Vaughn, supra. In Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932), the United States Supreme Court held that where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one is whether each provision requires proof of an additional fact which the other does not. This test was affirmed in United States v. Dixon, 509 U.S. 688, 113 S.Ct. 2849, 125 L.Ed.2d 556 (1993).

The "same evidence" test is a "broader test" than the federal Blockburger test. It was explained in State v. Steele, 387 So.2d 1175 (La.1980):

If the evidence required to support a finding of guilt of one crime would also have supported conviction of the other, the two are the same offense under a plea of double jeopardy, and a defendant can be placed in jeopardy for only one. *1169 The test depends on the evidence necessary for conviction, not all the evidence introduced at trial ...

Discussion

In order to prove the crime of simple robbery, the state must prove beyond a reasonable doubt that the defendant acted in accordance with the circumstances listed in La. R.S. 14:65, i.e., "the taking of anything of value belonging to another from the person of another or that is in the immediate control of another, by use of force or intimidation, but not armed with a dangerous weapon."

As to second degree battery, the state must prove beyond a reasonable doubt that the defendant perpetrated "a battery committed without the consent of the victim when the offender intentionally inflicts serious bodily injury." La. R.S. 14:34.1.

The offenses of simple robbery and second degree battery do not contain identical elements. Simple robbery requires the taking of anything of value belonging to another from the person of another or that is in the immediate control of another; second degree battery does not require these elements. A conviction of simple robbery does not require proof of physical contact; second degree battery does require proof of infliction of serious bodily injury. La. R.S. 14:34.1 defines serious bodily injury as "bodily injury which involves unconsciousness, extreme physical pain or protracted and obvious disfigurement, or protracted loss or impairment of the function of a bodily member, organ, or mental faculty, or a substantial risk of death." However, under the same evidence test, crimes need not be identical in elements in order for double jeopardy to apply. The

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