Opinion
NO. 2012 KA 0707
06-07-2013
STATE OF LOUISIANA v. TRACY LOUISE MAYO
Walter P. Reed District Attorney Covington, Louisiana Counsel for Plaintiff/Appellee State of Louisiana By: Kathryn Landry Special Appeals Counsel Baton Rouge, Louisiana Frank Sloan Mandeville, Louisiana Counsel for Defendant/Appellant Tracy Louise Mayo
NOT DESIGNATED FOR PUBLICATION
Appealed from the
22nd Judicial District Court
In and for the Parish of St. Tammany
State of Louisiana
Case No. 510995
The Honorable Reginald T. Badeaux, III, Judge Presiding
Walter P. Reed
District Attorney
Covington, Louisiana
Counsel for Plaintiff/Appellee
State of Louisiana
By: Kathryn Landry
Special Appeals Counsel
Baton Rouge, Louisiana
Frank Sloan
Mandeville, Louisiana
Counsel for Defendant/Appellant
Tracy Louise Mayo
BEFORE: GUIDRY, CRAIN, AND THERIOT, JJ.
THERIOT , J.
The defendant, Tracy Louise Mayo, was charged by felony bill of information with twelve counts of simple burglary, violations of La. R.S. 14:62, and one count of theft of property having a value amounting to over $1,500, a violation of La. R.S. 14:67. She initially entered a plea of not guilty, but she later withdrew this plea and pled guilty pursuant to a plea agreement with the state. The state filed a multiple offender bill of information. The defendant agreed with the allegations of the bill and was adjudged a second-felony habitual offender. She was sentenced to fifteen years at hard labor without the benefit of probation or suspension of sentence.
In the same proceeding, the defendant also pled guilty to charges for six additional counts of simple burglary under Twenty-Second Judicial District Court docket number 512676 and was sentenced to eight years at hard labor on each count to run concurrently with each other and with the sentences imposed under docket number 510995, Nineteenth Judicial District Court docket number 04-07-0065, Eighteenth Judicial District Court docket number 71385, and Twenty-Second Judicial District Court docket number 310148.
The terms of the defendant's plea negotiations were not specifically set forth in the record, but the defendant acknowledges in her guilty plea colloquy an agreement that she would be billed as a multiple offender under docket number 510995 only, would be sentenced to fifteen years at hard labor without the benefit of probation or suspension of sentence, and that her sentence would run concurrently with her other sentences.
The defendant's predicate offense was set forth as a February 13, 2007 charge of simple burglary under Nineteenth Judicial District Court docket number 03-07-0733.
The defendant now appeals, arguing that the minute entry for the habitual offender sentencing should be corrected to conform to the transcript. For the following reasons, we vacate the sentence and remand the matter for resentencing.
DISCUSSION
The defendant pled guilty to twelve counts of simple burglary and one count of theft. The habitual offender bill of information failed to specify which of the defendant's convictions were being enhanced. At the habitual offender sentencing hearing, neither the court nor the prosecutor identified which convictions were being enhanced. Although the minutes reflect that all thirteen were enhanced by the defendant's habitual offender sentence, the transcript does not reveal the same. Rather, the transcript indicates that the defendant was sentenced to fifteen years at hard labor without the benefit of probation or suspension of sentence. Therefore, it is unclear whether the district court imposed an enhanced sentence as to all or a portion of the defendant's convictions.
The minutes incorrectly indicate that the district court also denied the defendant the benefit of parole.
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The defendant's convictions for twelve counts of simple burglary and one count of theft require the imposition of thirteen separate sentences. A sentencing error occurs when a district court, in sentencing for multiple counts, does not impose a separate sentence for each count. See State v. Russland Enterprises, Inc., 542 So.2d 154, 155 (La. App. 1st Cir. 1989). In the instant matter, the district court's failure to impose separate sentences for each of the thirteen convictions was a sentencing error. See State v. Soco, 94-1099 (La. App. 1st Cir. 6/23/95), 657 So.2d 603.
It is well settled that a defendant can appeal from a final judgment of conviction only where a sentence has been imposed. See La. Code Crim. P. art. 912C(1); State v. Chapman, 471So.2d 716 (La. 1985) (per curiam). In the absence of valid sentences, the defendant's appeal is not properly before this court. Russland Enterprises, Inc., 542 So.2d at 155. Therefore, we do not consider the defendant's assignment of error, as it is not properly before us. Accordingly, the incorrect sentence imposed by the district court is vacated, and the matter is remanded to the district court for resentencing with instructions that the district court impose a separate sentence for each conviction. We further order the district court to specifically provide in the sentence or sentences, if all thirteen are being enhanced, that the sentence is being enhanced pursuant to the defendant's adjudication as a second-felony habitual offender. See State v. Shaw, 2006-2467 (La. 11/27/07), 969 So.2d 1233, 1245. After resentencing, the defendant may perfect a new appeal.
SENTENCE VACATED AND REMANDED TO DISTRICT COURT FOR RESENTENCING.