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State v. Benoit9/28/2004
on for post-conviction relief, pursuant to La.C.Cr.P. art. 930.8. However, the transcript shows that the trial judge did not so advise the Defendant. Where there is a discrepancy between the commitment and the transcript, the transcript prevails. State v. Lynch, 441 So.2d 732, 734 (La.1983). Thus, we will remand the case with instructions to the trial judge to inform the Defendant of the two-year prescriptive period by sending written notice to the Defendant within ten days after the rendition of this opinion and to file written proof in the record that the Defendant received such notice. See: State v. Esteen, 01-879, p. 28 (La.App. 5th Cir.5/15/02), 821 So.2d 60, 78.
Accordingly, the Defendant's conviction and sentence are hereby affirmed. The case is remanded with instructions to the trial judge to inform the Defendant of the conditions of home incarceration and of the two-year prescriptive period by sending written notice to the Defendant within ten days after the rendition of this opinion and to file written proof in the record that the Defendant received the notices.
CONVICTION AND SENTENCE AFFIRMED; REMANDED.
FN1. The trial judge also ordered the Defendant to:
(1) undergo a substance abuse evaluation and in-patient treatment program for four to six weeks;
(2) serve the remainder of the three-year sentence on home incarceration once he had completed the treatment program and his thirty days;
(3) complete and fully participate in a driver improvement program;
(4) pay a fine of $2,000 to be paid within six months of his release from home incarceration, his thirty days, and the four to six week in-patient treatment program. The trial court initially ordered the Defendant's vehicle to be seized, unless there was an exception in the law that applied. When it learned that the Defendant's parents were the lien holders for the full amount of the vehicle, the trial judge stated that he would not order the vehicle to be seized.
FN2. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
FN3. State v. Prieur, 277 So.2d 126 (La.1973).
FN4. Although the State indicated that it had accepted the stipulation, as was stated previously, it was in fact the State who offered
the stipulation and the Defendant who accepted it.
FN5. Old Chief v. United States, 519 U.S. 172, 117 S.Ct. 644, 136 L.Ed.2d 574 (1997). In Old Chief, the crime charged was a convicted felon in possession of a firearm. The Court found there that the state could not specify the felony, based on federal law. The Louisiana Supreme Court in Ball distinguished the case and declined to follow Old Chief.
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