Opinion
No. 94-K-0765.
August 17, 1994.
APPEAL FROM CRIMINAL DISTRICT COURT, PARISH OF ORLEANS, STATE OF LOUISIANA, HONORABLE CALVIN JOHNSON, J.
Harry F. Connick, Dist. Atty., C. Byron Berry, Jr., Asst. Dist. Atty., David Weilbaecher, Jr., Law Clerk, New Orleans, for relator.
C. Gary Wainwright, Gregory K. Voigt, New Orleans, for respondent.
Before SCHOTT, C.J., and BYRNES and CIACCIO, JJ.
On the application of the state, we grant certiorari in order to consider the validity of a judgment of the trial court denying the state's motion to correct an illegal sentence. We reverse the judgment of the trial court, vacate defendant's sentence, and remand for resentencing.
On July 16, 1993, defendant plead guilty to possession of marijuana, a violation of R.S. 40:966. He was on probation when he was arrested and charged with the instant offense relative to possession of cocaine, a violation of R.S. 40:967(C). On March 30, 1994, the trial court accepted defendant's plea of guilty under R.S. 40:983, suspended his sentence, and placed defendant on three years active probation. The State filed a motion to correct an illegal sentence and/or to reconsider the sentence on the ground that the defendant was ineligible for a suspended sentence under R.S. 40:983 because of his previous conviction of possession of marijuana. The trial court denied the motion.
R.S. 40:983(A) provides in pertinent part:
A. Whenever any person who has not previously been convicted of any offense under this Part pleads guilty to or is convicted of having violated R.S. 40:976(C) of this Part, and when it appears that the best interests of the public and of the defendant will be served, the court may, without entering a judgment of guilt and with the consent of such person, defer further proceedings and place him on probation . . . .
Part X of Title 40 of the Revised Statutes is the Uniform Controlled Dangerous Substances Law. It "was amended and re-enacted by Act 1972, No. 634, section 1 as part X of Chapter 4 of Title 40 to contain R.S. 40:961 through 40:995." See historical notes to Title 40, Part X. Thus, defendant's prior conviction under R.S. 40:966 for possession of marijuana, even though a misdemeanor, nonetheless falls under Part X of Title 40. Accordingly, the trial court erred in accepting defendant's plea under R.S. 40:983.
Defendant's sentence is vacated and the case remanded for resentencing.
VACATED AND REMANDED.