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State v. Self4/9/2003
The defendant, Billy Ray Self, was charged by bill of information with driving while intoxicated, third offense ("DWI-3rd"), a violation of LSA-R.S. 14:98. After a jury trial, the defendant was found guilty as charged. The trial court denied an oral motion for post-verdict judgment of acquittal. Thereafter, the defendant was sentenced to serve four years at hard labor, without the benefit of parole, probation or suspension of sentence, with credit for time served. The court also imposed a fine of two thousand dollars plus court costs, and ordered the forfeiture of the vehicle involved. Defendant timely filed for reconsideration of the sentence. As a result, the trial court withdrew the former sentence and ordered defendant's four-year sentence to be served concurrently with any other sentence imposed. The defendant now appeals, challenging the sufficiency of the evidence to convict and the trial court's failure to consider the amendment to LSA-R.S. 14.98(G) in imposing sentence. We affirm the defendant's conviction; however, the sentence is vacated and the case is remanded for resentencing.
FACTS
On June 22, 2001, the defendant's vehicle was seen leaving the scene of a hit-and-run near Joe's Bar and Grill on East Kings Highway in Shreveport, Louisiana. The police were notified and a description of the vehicle was broadcast over the radio to all police units. A few minutes later, a police officer saw defendant's truck weaving in traffic and across the center line. The vehicle ran over a curb while the defendant was making a turn. The officer stopped the defendant and commanded him to exit the vehicle. The defendant smelled of alcohol. He also had bloodshot eyes, slurred speech and difficulty standing. Defendant refused to submit to field sobriety tests and to the breathalyzer. A DWI task force officer was called to the scene. Both officers believed defendant was under the influence of alcohol. Defendant was arrested for driving while intoxicated. Defendant had two prior convictions for DWI.
DISCUSSION
ASSIGNMENT OF ERROR NO. 1
Sufficiency of Evidence
By his first assignment of error, defendant contends the evidence was insufficient to support his conviction of DWI-3rd. To support a conviction of driving while intoxicated, the state must prove that the defendant was operating a vehicle, and he was under the influence of alcohol or drugs. State v. Bourgeois, 00-1585 (La. App. 5th Cir. 3/14/01), 785 So.2d 848. Additionally, to convict a defendant of driving while intoxicated, third offense, the state must show that the defendant had two other valid convictions. LSA-R.S. 14:98(D). At trial, the state offered certified copies of the transcripts and minutes of the defendant's prior two convictions for driving while intoxicated. Certified copies of the transcript of the defendant's 1998 guilty plea to DWI in Caddo Parish and the bill of information were introduced into evidence. Sharon Bivens, deputy clerk of court, identified the bill of information and pertinent court minutes for the 1998 conviction.
Sergeant Owen McDonnell, a fingerprint analysis expert, matched the fingerprints on the bill of information to fingerprints taken from the defendant. Additionally, certified copies of the court minutes, a transcript of the guilty plea and the affidavit charging the defendant with DWI in 1999, in Baton Rouge City Court were introduced into evidence. The jury unanimously found the defendant guilty as charged.
The standard of appellate review for a sufficiency of evidence claim is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential e
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