APPLYING FOR SUPERVISORY WRIT FROM THE TWENTY-FOURTH JUDICIAL
DISTRICT COURT, PARISH OF JEFFERSON, STATE OF LOUISIANA,
DIRECTED TO THE HONORABLE NANCY A. MILLER, DIVISION
"I", NUMBER 11-1881
composed of Judges Fredericka Homberg Wicker, Stephen J.
Windhorst, and John J. Molaison, Jr.
GRANTED; MATTER REMANDED WITH INSTRUCTIONS
pro se criminal writ application, relator seeks
review of the trial court's denial of his motion to
correct an illegal sentence. Because we find a discrepancy
between the sentencing minute entry and the sentencing
transcript as to relator's enhanced sentence as a
multiple offender, we grant relator's writ and remand
this matter for correction of the sentencing minute entry and
official record reflects that, on June 24, 2011, relator pled
guilty to possession of a firearm by a convicted felon in
violation of La. R.S. 14:95.1 (count one), possession with
the intent to distribute cocaine in violation of La. R.S.
40:967(A) (count two), possession of heroin over twenty-eight
grams in violation of La. R.S. 40:966(D)(1)(A) (count three),
and possession with the intent to distribute marijuana in
violation of La. R.S. 40:966(A) (count four). On that date,
the trial court sentenced relator to fifteen years
imprisonment at hard labor on each count. Id. The
trial court ordered that the sentence on count one be served
without the benefit of parole, probation, or suspension of
sentence; the first two years of the sentence on count two be
served without the benefit of parole, probation, or
suspension of sentence; and imposed a fine of $50, 000 as to
count three. Id. Additionally, the district court
ordered the sentences on counts one, two, three, and four to
run concurrently with each other. Id.
official record further reflects that, on June 24, 2011, the
State also filed a multiple offender bill of information
alleging defendant to be a second felony offender. On that
date, relator stipulated to the multiple bill. The trial
judge adjudicated relator as a second felony offender under
La. R.S. 15:529.1, vacated relator's sentence on count
four, and resentenced relator to fifteen years imprisonment.
The June 24, 2011 minute entry states, "Count #1 and
Count #4 are without the benefit of parole, probation, or
suspension of sentence." Id.
March 14, 2019, relator filed a Motion to Correct an Illegal
Sentence with the district court pursuant to La. C.Cr.P. art.
882, asking the trial court to correct his sentence in order
to remove the restriction of parole
eligibility. In the motion, relator claimed that
neither the applicable sentencing statute for the underlying
offense of possession with the intent to distribute marijuana
nor the habitual offender statute restricted parole
eligibility and, thus, he sought to have the trial court
amend his sentence to delete the parole restriction. The
trial judge denied relator's motion.
time of the underlying offense, the sentencing statute for a
conviction for possession with intent to distribute
marijuana, La. R.S. 40:966, instructed that a defendant faced
a sentence "to a term of imprisonment at hard labor for
not less than five nor more than thirty years," with no
restriction of benefits. Furthermore, at that time, La. R.S.
15:529.1(G) provided, "Any sentence imposed under the
provisions of this Section shall be at hard labor without
benefit of probation or suspension of sentence." When a
defendant is sentenced as a habitual offender, the penalty
increase is computed by reference to the sentencing
provisions of the underlying offense. See, State
v. Bruins, 407 So.2d 685, 687 (La. 1981). In this case,
neither the underlying offense nor the enhanced sentence
required the imposition of a parole restriction. While the
guilty plea form does not indicate that the sentence was to
be served with the restriction of parole eligibility, the
June 24, 2011 sentencing minute entry reflects that the
sentences on counts one and four are to be served without the
benefit of parole, probation, or suspension of sentence.
review of relator's writ application, this Court ordered
the sentencing transcript from relator's multiple
offender sentencing hearing to determine whether the
sentencing minute entry in fact reflected relator's
accurate sentence, as imposed by the trial judge at
sentencing. Where a discrepancy exists between the transcript
and the minute entry, the transcript prevails. State v.
Lynch, 441 So.2d 732. The writ application was
supplemented with a copy of relator's multiple offender
adjudication and sentencing. A review of the transcript
reflects that the trial judge, in sentencing relator as a
multiple offender, properly sentenced relator to
"fifteen years without benefit of probation or
suspension of sentence," with no parole restriction.
we find the sentencing minute entry and commitment are
inconsistent with the sentencing transcript and must be
corrected. We therefore grant this writ application and
remand this matter to the trial court for correction of
minute entry and commitment to remove the parole restriction
from relator's sentence on his enhanced multiple offender
sentence to accurately reflect relator's sentence as
imposed by the trial judge at sentencing. Furthermore, the
Clerk of Court for the 24th Judicial District Court is
ordered to transmit the commitment to the officer in charge
of the institution to which relator has been sentenced and to
the Department of Corrections' Legal Department.