State Of Louisiana VS Nicholas A. Weatherman

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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT 2011 KA 0123 STATE OF LOUISIANA k t VERSUS Y NICHOLAS A WEATHERMAN DATE OF JUDGMENT JUN 1 01011 ON APPEAL FROM THE TWENTY SECOND JUDICIAL DISTRICT COURT NUMBER 489 DIVISION B PARISH OF ST TAMMANY 293 STATE OF LOUISIANA HONORABLE AUGUST J HAND JUDGE Walter P Reed Counsel for Appellee District Attorney Covington Louisiana Kathryn W Landry Baton Rouge Louisiana State of Louisiana Gwendolyn K Brown Counsel for DefendantAppellant Baton Rouge Louisiana Nicholas A Weatherman BEFORE KUHN PETTIGREW AND HIGGINBOTHAM JJ Disposition DENIAL OF DEFENDANT MOTION TO QUASH REVERSED GUILTY PLEA S CONVICTIONS AND PROCEEDINGS SENTENCES VACATED MATTER REMANDED FOR FURTHER KUHN J Defendant Nicholas A Weatherman was charged by bill of information with two counts of possession of a Schedule I controlled dangerous substance marijuana second offense violations of La R 40 S 966C See also La R S 2 966E 40 Defendant pled not guilty and filed a motion to quash the bill of information on the ground that the guilty plea resulting in the predicate conviction was not knowingly and intelligently entered Subsequently at the beginning of the Boykin hearing conducted by the trial court on the instant offenses defense counsel also filed an oral motion to quash on the basis that the predicate conviction relied upon by the state occurred after the commission of the instant offenses The trial court denied both motions to quash Thereafter defendant withdrew his prior not guilty pleas and entered pleas of guilty as charged on both counts reserving the right to appeal the trial court ruling on his motions to quash s pursuant to State v Crosby 338 So 584 La 1976 2d In accordance with Louisiana Code of Criminal Procedure article 893E the trial court deferred a 1 the imposition of sentence and placed defendant on probation for five years for each of the two convictions with special conditions The trial court also imposed a fine of 250 on each count 00 Defendant now appeals alleging as his sole assignment of error that the trial court erred in denying his oral motion to quash 1 At the time that the oral motion was made defense counsel requested leave to file a written motion to quash on this ground Following entry of defendant guilty pleas defense counsel s filed a written motion to quash on this basis 2 The trial court initially had sentenced defendant on each conviction to five years at hard labor with the sentences to be suspended and defendant placed on probation on each count for five years However upon defense counsel pointing out that these convictions were defendant first s felony convictions the trial court vacated the sentences imposed and deferred sentencing as noted above OA For the following reasons we reverse the trial court denial of the motion to s quash vacate the convictions and sentences and remand this matter for further proceedings PROCEDURAL BACKGROUND The facts surrounding the instant offenses were not developed in this case because defendant pled guilty to the charged offenses and defense counsel stipulated that a factual basis existed for the guilty pleas However the record reveals that the bill of information charging defendant with the instant offenses of possession of marijuana was filed by the state on June 7 2010 According to the bill of information the offense comprising count one occurred on January 8 2008 and the offense comprising count two occurred on March 9 2008 It is further alleged in the bill of information that the offenses are second offenses since defendant was convicted on March 9 2010 in the Twenty second Judicial District Court of a prior offense of possession of marijuana ASSIGNMENT OF ERROR In his sole assignment of error defendant argues the trial court erred in denying his motion to quash the bill of information Specifically he contends the instant charges for possession of marijuana cannot be prosecuted as second offenses because these offenses occurred before he was convicted of the predicate offense s Defendant contention has merit According to the allegations of the bill of information the instant offenses were committed in 2008 prior to defendant s 3 conviction of the predicate offense in 2010 At the time that the instant offenses were committed La R 40 provided as follows S 966E 2 Except as provided in Subsection F or G of this Section on a second conviction for violation of Subsection C of this Section with regard to marijuana tetrahydrocannabinol or chemical derivatives thereof the offender shall be fined not more than two thousand dollars imprisoned with or without hard labor for not more than five years or both Thus the issue presented herein is whether a defendant can be convicted under this provision for second offense possession of marijuana when the crime was committed prior to the defendant conviction for first offense possession of s marijuana This court was recently confronted with this identical issue in State v Harris 20100643 p 3 La App lst Cir 3 11 25 3d So in which we held that a defendant cannot be guilty of the crime of possession of marijuana second offense unless such crime is committed after the first conviction for this offense In reaching this holding we explained A common legislative purpose of repeater offense statutes is to serve as a warning to first offenders and to afford them an opportunity to reform See State v Neal 347 So 1139 1141 La 1977 2d 42 The consistent application of repeater offense statutes over the years has been that prior convictions in order to be available for imposition of a greater punishment as a subsequent offender must precede the commission of the principal offense that is the latest prosecution in point of time See Neal 347 So at 1141 This has been the greatly 2d preponderant interpretation of similar statutes throughout the nation regardless of the phraseology of the statute or whether it specifies that the earlier conviction must precede the latest offense s whenever enhanced penalties are provided for a subsequent offense Id If therefore the prior conviction is an essential allegation for conviction of the second offense crime an accused cannot be charged with the latter crime when arrested for the second incident if at that time he had not been previously convicted of a first offense Id Id 20100643 at p 2 3d So E Accordingly since the instant offenses of second offense possession of marijuana occurred prior to the predicate conviction relied upon by the state for enhancement purposes the trial court erred in denying defendant motion to s quash on this ground Hence we reverse the trial court ruling grant the motion s to quash vacate the instant convictions and sentences and remand this matter for further proceedings in accordance with law DENIAL OF DEFENDANT MOTION TO QUASH REVERSED S GUILTY PLEA CONVICTIONS AND SENTENCES VACATED MATTER REMANDED FOR FURTHER PROCEEDINGS R

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