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STATE V. SINGLETON v. JERMAINE SINGLETON.

August 21, 1996

STATE V. SINGLETON, 96-203 (LA.APP. 5 CIR. 8/28/96); ___ SO.2D ___ STATE OF LOUISIANA

v.

JERMAINE SINGLETON.



APPEAL FROM TWENTY-NINTH JUDICIAL DISTRICT COURT, PARISH OF ST. CHARLES, NO. 94-0692, STATE OF LOUISIANA, HONORABLE MARY ANN VIAL LEMMON, J.

Before CANNELLA and DALEY, JJ., and GARVEY, J. Pro Tem.

DALEY, Judge.

FOR PUBLICATION

August 28, 1996.

Defendant, Jermaine Singleton, assigns four errors of the trial court in its sentencing of him after his guilty plea to four counts of armed robbery, in violation of LSA-R.S. 14:64. Defendant does not appeal the underlying conviction. After thorough review of the record, we affirm the defendant's sentence.

ASSIGNMENTS OF ERROR

Defendant argues the trial court committed the following errors in his sentence:

1) The trial court had no authority to deny "good-time" eligibility to defendant;

2) The denial of "good-time" eligibility to defendant constitutes an ex post facto application of the law;

3) The trial court erred in deviating upward from the Louisiana Sentencing Guidelines, resulting in an excessive sentence; and

4) The trial court failed to consider the considerable mitigating factors, resulting in the imposition of an excessive sentence.

On December 14, 1994, the St. Charles Parish District Attorney filed a bill of information charging defendant, Jermaine Singleton, with four counts of armed robbery, in violation of LSA-R.S. 14:64. The state also charged Larry Singleton, Jr. and Aric C. Lewis as codefendants. Defendant was arraigned on December 14, 1994, and entered a plea of not guilty.

On May 3, 1995, the state filed a motion to invoke the firearms sentencing provisions under LSA-C.Cr.P. art. 893.1, et seq. The trial court granted the state's motion over defendant's objection. On the same day, Singleton withdrew his former plea of not guilty, and entered a guilty plea as to all charges. The trial court held a sentencing hearing on October 23 and October 27, 1995, during which the defendant produced the testimony of several witnesses. On December 20, 1995, the trial court sentenced defendant to a term of seventeen years on each count, without benefit of parole, probation, or suspension of sentence, each count to run concurrently with the others. The court granted defendant credit for time served.

On December 27, 1995, defendant filed a motion to reconsider sentence and a motion for appeal. The trial court granted defendant's motion for appeal and denied the Motion to Reconsider Sentence. On January 9, 1996, defendant filed an amended motion to reconsider sentence. The trial court denied the amended motion on January 10, 1996.

Defendant, a seventeen year old high school student, along with his cousin, Larry Singleton, Jr., and Aric Lewis, armed robbed four individuals inside the First American Bank in Luling on the morning of December 2, 1994. Each of the three perpetrators concealed his identity by wearing a mask or other covering on his face. Defendant carried a .45 caliber chrome-plated handgun. Larry Singleton carried a twelve gauge pump shotgun with a pistol grip, and Aric Lewis had a .380 semi-automatic handgun.

The young men entered the bank with guns drawn, and ordered everyone inside to lie on the floor and threatened their lives. The perpetrators demanded money, and tellers placed $123,577 in currency from the bank's vault and teller drawers in the robbers' green knapsack and white pillowcase. The three perpetrators then left the bank. A witness working at a business across the street saw the three young men leave the bank and drive away in a grey Pontiac automobile.

Detective Al Theriot of the St. Charles Parish Sheriff's Office spotted the car shortly thereafter, and pursued it. An automobile chase followed, which ended in Ama, Louisiana when the robbers' car hit a tree. After the collision the three young men fled on foot, and were eventually apprehended by deputies. Upon searching the trunk of the car, the officers found the three guns used in the robbery, as well as the knapsack and the pillowcase containing all the money taken from the bank. On the same day, defendant, Jermaine Singleton, made a recorded statement to police, confessing his part in the robbery.

ASSIGNMENT OF ERROR ONE

In his first assignment, defendant complains that the trial court erred in designating that his sentences be served without eligibility for diminution of sentence for good behavior, or "good time." We disagree. The trial court's authority to deny eligibility for good time derives from LSA-C.Cr.P. art. 890.1, which provides:

Notwithstanding any provision of law to the contrary, if a person is convicted of or pleads guilty to a crime of violence as defined in R.S. 14:2(13) and is sentenced to imprisonment for a stated number of years or months, the sentencing court may deny or place conditions on eligibility for diminution of sentence for ...


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