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State v. Perkins

Court of Appeal of Louisiana, Fourth Circuit

October 29, 2014

STATE OF LOUISIANA
v.
JOSEPH PERKINS

APPEAL FROM CRIMINAL DISTRICT COURT ORLEANS PARISH. NO. 497-485, SECTION " E" . HONORABLE KEVA M. LANDRUM-JOHNSON, JUDGE.

LEON A. CANNIZZARO, JR., DISTRICT ATTORNEY OF ORLEANS PARISH, SCOTT G. VINCENT, ASSISTANT DISTRICT ATTORNEY OF ORLEANS PARISH, New Orleans, Louisiana, Counsel for State of Louisiana.

POWELL W. MILLER, LOUISIANA APPELLATE PROJECT, New Orleans, Louisiana, Counsel for Defendant/Appellant.

(Court composed of Chief Judge James F. McKay III, Judge Edwin A. Lombard, Judge Joy Cossich Lobrano).

OPINION

(ON REMAND FROM THE LOUISIANA SUPREME COURT)

James F. McKay III, Chief Judge.

[2012-0662 La.App. 4 Cir. 2] On September 3, 2014, the Louisiana Supreme Court issued a Per Curiam, in a five to two split panel decision, finding that this Court erred as a matter of law in

Page 650

reversing the defendant's conviction and sentence and instructed this Court to consider the defendant's remaining assignments of error which had been pretermitted. This opinion follows.

ASSIGNMENT OF ERROR NUMBER 1

In his first assignment of error the defendant asserted that the trial court erred when it refused to give his requested instructions regarding self-defense, necessity and justification. This Court reversed the district court's ruling in a split panel decision.[1] The State filed a writ of certiorari with the Louisiana Supreme Court which was granted. State v. Perkins, 2013-1917 (La. 3/21/14), 135 So.3d 626. The Louisiana Supreme in the September 3, 2014 Per Curiam, held that the defendant, Joseph Perkins, was not entitled to jury instructions on self-defense and justification for the charge offense of possession of a " shank" by a convicted felon, [2012-0662 La.App. 4 Cir. 3] a violation of La. R.S. 14:95.1, while he was incarcerated in the Orleans Parish Prison and reinstated his conviction and sentence.

ERRORS PATENT

A review of the record for errors patent reveals two pertaining to the sentence imposed. The sentencing provisions of La. R.S. 14:95.1 provide that a person convicted of possession of a concealed weapon by a convicted felon " shall be imprisoned at hard labor for not less than ten nor more than fifteen years, without benefit of parole, probation or suspension of sentence and pay a fine of not less than one thousand dollars nor more than five thousand dollars." The district court failed to impose the mandatory fine as required. The court also failed to deny the defendant's eligibility for parole, probation, or suspension of sentence. Accordingly, the defendant's sentence is illegally lenient.

In State v. Williams, 2003-0302 (La.App. 4 Cir. 10/6/03), 859 So.2d 751, this Court held that a reviewing court must remand cases for the imposition of a mandatory fine where the trial court failed to do so. Thus, in accordance with this Court's jurisprudence, the matter is remanded to the district court for the imposition of the mandatory fine. See State v. Harris, 2011-0663, p. 4 (La.App. 4 Cir. 3/28/12), 88 So.3d 1223, 1225; State v. Jefferson, ...


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