State Of Louisiana VS Marvin Mitchell Williamson, Jr.

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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT NO 2010 KA 0152 STATE OF LOUISIANA VERSUS MARVIN MITCHELL WILLIAMSON JR Judgment rendered October 29 2010 I Appealed from the 16th Judicial District Court in and for the Parish of St Mary Louisiana Trial Court No 2008 175670 Honorable Paul J deMahy Judge HON J PHIL HANEY ATTORNEYS FOR DISTRICT ATTORNEY STATE OF LOUISIANA JEFFREY J TROSCLAIR ASSISTANT DISTRICT ATTORNEY FRANKLIN LA FRANK SLOAN ATTORNEY FOR MANDEVILLE LA DEFENDANT APPELLANT MARVIN MITCHELL WILLIAMSON JR BEFORE KUHN PETTIGREW 37 and KLINE J pro tempore Judge William F Kline Jr retired is serving as judge pro tempore by special appointment of the Louisiana Supreme Court PETTIGREW 3 The defendant Marvin Mitchell Williamson Jr was charged by bill of information with aggravated criminal damage to property a violation of La R 14 S 55 The defendant pled not guilty and after trial by jury was found guilty as charged The trial court imposed a sentence of two years at hard labor The defendant appealed and this court affirmed the conviction and sentence State v Williamson 2009 1299 La App 1 Cir 12 unpublished case 09 23 second felony habitual offender Subsequently the defendant was adjudicated a The trial court vacated the original sentence and sentenced the defendant to sevenand one half years at hard labor without the benefit of probation parole or suspension of sentence The defendant now appeals claiming the parole restriction resulted in an illegal sentence We affirm the habitual offender adjudication vacate the sentence and remand for resentencing FACTS On December 12 2007 Brenda Aucoin was working at Friend Tavern in Morgan s City When her shift was over she went into the parking lot where she found the defendant waiting for her Aucoin and the defendant had been in a romantic relationship for years living together for part of that time but separating for periods of time as well On December 12 the defendant wanted Aucoin to come home with him but she refused At this point Aucoin and the defendant were in their respective pickup trucks the s defendant having special heavy duty bumpers The defendant pulled away from s Aucoin truck angled his truck so that his rear bumper faced Aucoin driver side s s accelerated and rammed her truck while she was sitting in it Aucoin had dropped her keys on the floorboard and was reaching down to get them when she felt the impact which occurred with enough force to cause Aucoin truck to fish tail The defendant s left and Aucoin called the police She was taken to Teche Action Hospital where she was treated for dizziness headache and neck shoulder and spinal pain EXCESSIVE SENTENCE In his only assignment of error the defendant contends that the sentence imposed is illegally excessive because the court ordered it served without the benefit of parole 2 although neither the aggravated criminal damage to property statute nor the habitual offender statute restricts parole eligibility The trial court sentenced the defendant under La R 15 to seven S 529 a 1 1A and onehalf years at hard labor without the benefit of probation parole or suspension of sentence However parole eligibility is not prohibited by either the habitual offender statute or the aggravated criminal damage to property statute See La R 14 S 55 La S 529 R 15 Thus the denial of parole eligibility on the defendant habitual offender 1G s sentence is unlawful This sentencing error does not involve discretion It is dependent upon the sentencing provisions of the particular penalty provisions of the criminal statute the defendant is charged with defendant may be in prison What is discretionary is the range of the time the Specifically pursuant to La R 15 the S 529 a 1 1A sentencing range is seven and one half years to thirty years without the benefit of probation or suspension of sentence See La R 14 S 55 La R 15 S 529 1G What is not clear from the record is whether the trial court mistaken belief that he could s sentence the defendant without the benefit of parole affected the term of the sentence he imposed upon the defendant In other words if the trial court had known the sentence would be with the benefit of parole would he have imposed a longer sentence for defendant than the seven and onehalf years This is discretionary with the trial court The Louisiana Supreme Court has previously admonished t the extent that the o amendment of defendant sentence entails more than a ministerial correction of a s sentencing error the decision in State v Williams 2000 1725 La 11 800 01 28 2d So 790 does not sanction the sua sponte correction made by the court of appeal on s defendant appeal of his conviction and sentence State v Haynes 20041893 La 04 10 12 889 So 224 per curiam Thus we must vacate the sentence and remand 2d for resentencing HABITUAL OFFENDER ADJUDICATION AFFIRMED SENTENCE VACATED AND REMANDED WITH INSTRUCTIONS 3

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