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Washington v. State

Court of Appeals of Louisiana, Fifth Circuit

October 9, 2019

JAMAL WASHINGTON
v.
STATE OF LOUISIANA IN RE JAMAL WASHINGTON

          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 18-546

          Panel composed of Judges Fredericka Homberg Wicker, Marc E. Johnson, and Stephen J. Windhorst

         WRIT GRANTED

         Relator, Jamal Washington, seeks review of the trial court's June 28, 2019 denial of his motion to clarify sentence. In his motion, Relator argued that his conviction for racketeering was not a crime of violence, as designated by the trial court at sentencing, and the minute entry for his sentencing should be clarified to reflect that his conviction is not a crime of violence. The trial court denied the motion on the basis that the plea agreement and factual basis for the guilty plea establish the appropriateness of the crime of violence designation as applied to Relator's racketeering conviction.

La. R.S. 14:2(B) defines, "crime of violence" as an offense that has, as an element, the use, attempted use, or threatened use of physical force against the person or property of another, and that, by its very nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense or an offense that involves the possession or use of a dangerous weapon. (Emphasis added).

         The statute thereafter provides a list of enumerated offenses and states that those offenses and attempts to commit any of them are designated as "crimes of violence."

         While certain crimes are required to be designated by the court in the minutes as a "crime of violence" pursuant to La. C.Cr.P. art 890.3(C), the crime of racketeering is not one of them. Racketeering does not fall within the statutory definition of a crime of violence or under any of the enumerated offenses listed as crimes of violence. Furthermore, according to the factual basis for the guilty plea agreed to by the State, Relator "never threatened or harmed the women in any way." Additionally, the plea agreement itself does not establish the appropriateness of the crime of violence designation because it does not set forth any facts associating violence with Relator.

         Therefore, we find the designation in sentencing minute entry that Relator's conviction for racketeering as a crime of violence is erroneous. Accordingly, we grant Relator's writ application, reverse the trial court's June 28, 2019 Order, and remand the matter to the trial court for correction of the sentencing minute entry. See, State v. Harrell, 18-63 (La.App. 5 Cir. 10/17/18); 258 So.3d 1007, 1014.

         MEJ FHW

          WINDHORST, J., DISSENTS WITH REASONS

         I respectfully dissent and would deny the writ for the following reasons.

         Case law indicates that the list under La. R.S. 14:2(B) is illustrative and not exhaustive. For instance, in State v. Oliphant, 12-1176 (La. 3/19/13), 113 So.3d 165, the Louisiana Supreme Court discussed La. R.S. 14:2(B) and stated:

Because this list of enumerated crimes is merely illustrative, not exhaustive, unlisted offenses may be denominated as crimes of violence under the general definition of the term provided by the statute ...
While the Legislature has plenary authority to define crimes and prescribe punishments and remains essentially free to add any crime to La. Rev.Stat. ยง 14:2(B) it sees fit as a shorthand means of increasing the severity of the offense for sentencing purposes, courts do not have that same discretion. Rather, the only standard provided to us by the Legislature for determining whether an unenumerated crime is a crime of violence is the general rule that the offense must (1) have as "an element, the use, attempted use, or threatened use of physical force against the person or property of another, and that, by its very nature, involves a substantial risk that physical force against the person or ...

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