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State v. Lemoine11/29/2005
Panel composed of Judges Edward A. Dufresne, Jr., Clarence E. McManus, and James C. Gulotta, Pro Tempore
REVERSED AND REMANDED FOR FURTHER PROCEEDINGS.
The Jefferson Parish District Attorney's Office filed a bill of information charging defendant, Susan M. Lemoine, with driving while intoxicated, fourth offense, in violation of LSA-R.S. 14:98. Defendant originally pled not guilty to the charge, but then withdrew that plea and pled guilty. Subsequently, defendant withdrew her guilty plea and filed a number of pretrial motions, including a motion to quash the bill of information. At the hearing on the motion to quash, defense counsel argued that the Louisiana Legislature did not specifically authorize the use of a pardoned D.W.I. conviction to enhance a subsequent D.W.I. felony charge. Therefore, defendant's pardoned third offense D.W.I. conviction could not serve as a predicate to enhance the present D.W.I. charge against defendant to a fourth offense. At most, defendant could only be charged with third offense D.W.I. However, defense counsel was unable to provide the court with any legal authority supporting his position. The state responded that, similar to multiple offender proceedings, a pardoned first offender D.W.I. conviction can serve to enhance a subsequent D.W.I. charge. After looking to Article 893 of the Louisiana Code of Criminal Procedure for guidance and analogy, the trial court concluded that, as a result of the pardon in this case, defendant's third offender D.W.I. conviction no longer existed. The trial court therefore granted the motion to quash. It is from this ruling that the state now appeals.
In the present case, after completion of her sentence, defendant received an automatic first offender pardon in connection with her third offense D.W.I. conviction. At issue in this appeal is the scope of the automatic first offender pardon under LSA-R.S. 15:572. That statute provides, in pertinent part, as follows:
A. The governor may grant reprieves to persons convicted of offenses against the state and, upon recommendation of the Board of Pardons as hereinafter provided for by this Part, may commute sentences, pardon those convicted of offenses against the state, and remit fines and forfeitures imposed for such offenses. Notwithstanding any provision of law to the contrary, the governor shall not grant any pardon to any person unless that person has paid all of the court costs which were imposed in connection with the conviction of the crime for which the pardon is to be issued.
B. (1) A first offender never previously convicted of a felony shall be pardoned automatically upon completion of his sentence without a recommendation of the Board of Pardons and without action by the governor.
D. On the day that an individual completes his sentence the Division of Probation and Parole of the Department of Corrections, after satisfying itself that (1) the individual is a first offender as defined herein and (2) the individual has completed his sentence shall issue a certificate recognizing and proclaiming that the petitioner is fully pardoned for the offense, and that he has all rights of citizenship and franchise, and shall transmit a copy of the certificate to the individual and to the clerk of court in and for the parish where the conviction occurred. This copy shall be filed in the record of the proceedings in which the conviction was obtained. However, once an automatic pardon is granted under the provisions of this Section, the individual who received such pardon shall not be entitled to receive another automatic pardon.
E. Notwithstanding any provision herein contained to the contrary, any person receiving a par
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