 |
 |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|
|
|
|
State v. Presson4/6/2005
e. At sentencing, the trial court first stated that "the defendant be sentenced at hard labor for not less than ten years." He argues that the trial court also suspended a portion of the sentence imposed, but did not state how long the term of probation was to be. These arguments are without merit.
La. C. Cr. P. art. 879 provides that if a defendant had been convicted of an offense and is sentenced to imprisonment, the court shall impose a determinate sentence. In this matter, although the trial court initially stated that the defendant was to be sentenced to hard labor for "not less than ten years," the trial court went on to state that the defendant's term in the parish jail as an alternative to the fine was specified to run concurrently "with the ten year sentence." The court also specified that "the first sixty days of the ten year sentence" is to be served without benefit of parole, probation, or suspension of sentence. The defendant claims that "while it may be understood what sentence was intended, since the sentence imposed was not a determinate one, it must be set aside and this matter remanded for imposition of a determinate sentence." From the construction of the oral pronouncement of the sentence, it can be assumed that the court was initially reading from statutory language; however, in the same and subsequent statement, he states repeatedly that the sentence is a "ten year sentence." From the record, it is clear that the court imposed the minimum sentence of ten years at hard labor. Based upon the record before this court, the sentence is determinate and remand is unnecessary.
The defendant also argues that the trial court failed to specify the length of the probated sentence. The transcript of the sentencing shows that the trial court clearly stated that the term of probation was five years. The trial court stated, "You are sentenced to five years of active supervised probation, if I did not say that."
The defendant contends that the trial court failed to notify him of the time limits for filing post conviction relief imposed by La. C. Cr. P. art. 930.8. The trial court stated "you are also notified that you have time delays to file post conviction relief." This was insufficient; however, it is not a reversible error. La. C. Cr. P. art. 921. The Louisiana Supreme Court has held that La. C. Cr. P. art. 930.8(C), which requires the trial court to inform the defendant of the limitations period for filing an application for post conviction relief, is supplicatory language which does not bestow an enforceable right on an individual defendant. State ex rel. Glover v. State, 93-2330 (La. 9/5/95), 660 So. 2d 1189, abrogated on other grounds, State ex rel. Oliveri v. State, 2000-0172 (La. 2/21/01), 779 So. 2d 735; State v. Hardy, 39,233 (La. App. 2d Cir. 1/26/05), 892 So. 2d 710. The trial court should have advised the defendant that no application for post conviction relief, including applications which seek an out-of-time appeal, shall be considered if filed more than two years after the judgment of conviction and sentence have become final under the provisions of La. C. Cr. P. arts. 914 or 922. The defendant is hereby notified in this opinion of the appropriate delay.
CONCLUSION
For the reasons stated above, we affirm the conviction and sentence of the defendant, Steven Michael Presson.
AFFIRMED.
|