State v. Green

391 So. 2d 833 (1980)

STATE of Louisiana v. Robert Neal GREEN.

No. 67703.

Supreme Court of Louisiana.

November 19, 1980.

Rehearing Denied January 9, 1981.

*834 William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Leonard K. Knapp, Jr., Dist. Atty., George Perez, Abbott J. Reeves, Asst. Dist. Atty., for plaintiff-appellee.

Scotty G. Rozas, J. Wade Smith, Lake Charles, for defendant-appellant.

PER CURIAM.

Defendant Robert Neal Green was charged by bill of information with aggravated burglary, La.R.S. 14:60, and attempted aggravated rape, La.R.S. 14:27 (14:42). The two counts were jointly tried to a twelve person jury, which on December 4, 1979, found defendant guilty as charged. Thereafter, the trial court sentenced him to serve thirty-five years at hard labor without benefit of parole for the attempted rape and ten years at hard labor for the burglary, to be served concurrently. On appeal he relies upon three assignments of error for reversal of his conviction and sentence.

Defendant correctly argues that the denial of parole eligibility on his sentence for attempted aggravated rape was unlawful. The completed offense would have been punishable by life imprisonment without benefit of parole, probation or suspension of sentence. La.R.S. 14:42, as amended by acts 1978, No. 239, § 1. However, the penalty for attempt was prescribed by La.R.S. 14:27(D)(1), as follows:

"If the offense so attempted is punishable by death or life imprisonment, [one convicted of attempt] shall be imprisoned at hard labor for not more than fifty years."

Because the statute does not prescribe ineligibility for parole, probation or suspension of sentence, the trial court could not lawfully so qualify defendant's sentence. See, State v. Welch, 368 So. 2d 965 (La.1979) (on application for rehearing). Accordingly, the sentence must be set aside.

We have reviewed defendant's remaining assignments of error and found them to be without merit.

Defendant's convictions and sentence for aggravated burglary are affirmed, but the sentence for attempted aggravated rape is set aside and the case is remanded for resentencing in accordance with law.