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State v. Tomlinson10/6/2005
Panel composed of Judges James L. Cannella, Clarence E. McManus, and James C. Gulotta, Pro Tempore
FINDING AS HABITUAL OFFENDER AND ENHANCED SENTENCE VACATED
The Defendant, Derrick Dwayne Tomlinson, appeals from his finding as a habitual offender and his enhanced sentence of 25 years imprisonment at hard labor, without benefit of probation or suspension of sentence. For the reasons which follow, we vacate the finding that the Defendant was a habitual offender and enhanced sentence.
This is the Defendant's second appeal in this case. His conviction for distribution of cocaine and original sentence were previously affirmed by this Court. State v. Tomlinson, 04-992 (La. App. 5th Cir. 1/25/05), 895 So.2d 45, 46. This appeal pertains only to the Defendant's findings as a habitual offender and 25 year enhanced sentence.
On October 14, 2004, following sentencing on the distribution of cocaine conviction, the State filed a habitual offender bill of information alleging that the Defendant was a third felony offender, based on a 1995 guilty plea to "FELONY BREAKING AND ENTERING" in North Carolina and a 1990 guilty plea to "PUBLISHING A FORGED CHECK WITH THE INTENT TO DEFRAUD /FELONY" in Florida. The Defendant waived a reading of the habitual offender bill of information, denied the allegations therein, and a habitual offender hearing was held on January 5, 2005. The trial court found the Defendant to be a third felony offender, vacated his original sentence and imposed an enhanced sentence of imprisonment at hard labor for 25 years without benefit of probation or suspension of sentence. It is from the finding as a third felony offender and enhanced sentence that the Defendant appeals, assigning three errors.
ASSIGNMENT OF ERROR NUMBER ONE
By this assignment of error the Defendant contends that the trial court erred by accepting incomplete documentation from Florida and North Carolina for purposes of enhancing his sentence. More particularly, the Defendant argues that the trial judge erred in finding him to be a third felony offender because the State failed to prove that he knowingly and voluntarily entered both the North Carolina and Florida predicate guilty pleas. The Defendant contends that the prior pleas are invalid because the State failed to prove (1) that he waived his Boykin rights; (2) that he was informed of his sentencing exposure; (3) that he was informed that the guilty pleas could be used for future enhancement; and (4) as concerns the Florida conviction, that he was represented by counsel or waived his right to representation.
The State responds that the lack of advice on future enhancement and sentencing exposure did not render either guilty plea invalid and that it met its initial burden under State v. Shelton, 621 So.2d 769, 779-780 (La.1993), regarding the North Carolina guilty plea. However, the State concedes that the documentation for the Florida guilty plea that was introduced at the hearing does not indicate that the Defendant was represented by counsel when the plea was entered. The State argues that the Defendant is precluded from asserting this argument on appeal because it was not asserted in the district court.
When a defendant denies the allegations in a habitual offender bill of information, the state must prove the existence of the predicate guilty plea and that the defendant was represented by counsel (or constitutionally waived counsel) at the time he entered his plea. State v. Zachary, 01-3191 (La. 10/25/02), 829 So.2d 405, 407 and State v. Shelton, 621 So.2d 769, 779-780 (La. 1993). Thereafter, the defendant bears the burden of producing affirmative evidence indicating an infringeme
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