State v. Jarvis

WEIMER, J.

ON SUPERVISORY WRIT TO THE TWENTY-SECOND JUDICIAL DISTRICT COURT, PARISH OF ST. TAMMANY WEIMER, J., concurring in part and dissenting in part.

Because I agree with the majority that the 2001 and 2002 sentence reductions are expressly applicable retroactively to inmates sentenced prior to 2001, I concur in the majority's granting of applicant's writ application.

Applying the amendments to applicant's sentence imposed in 1999, I note that La. R.S. 15:529(A)(1)(b)(ii) provided for a life sentence only if the third felony and the two prior felonies were crimes of violence, a sex offense, or violations of the controlled dangerous substances law punishable by imprisonment for more than ten years or any other crime punishable by imprisonment for twelve years or more. The sentencing court's reasons for judgment indicate that applicant's two prior convictions consisted of (1) unauthorized use of a movable over $1000 and (2) unauthorized use of a motor vehicle over $1000 and aggravated battery. Unauthorized use of a movable is not a crime of violence, a sex offense, a violation of the controlled substances law, or a crime punishable by imprisonment for twelve years or more. Consequently, applicant's life sentence as a third-felony habitual offender is for a term longer than authorized by law. See State ex rel. Esteen v. State, 16-0949 (La. 1/30/18), 239 So.3d 233, 238.

Given these circumstances, I find it unnecessary to vacate the habitual offender adjudication and remand to the district court to conduct a new habitual offender adjudication. Rather, I would reverse the denial of applicant's motion to correct an illegal sentence, grant applicant's motion to correct an illegal sentence, and remand the matter simply for resentencing in accordance with Esteen. Accordingly, I respectfully concur in part and dissent in part.