Per Curiam In Denial of Rehearing October 15, 1976.
The question in this case is whether the state may multiple-bill a person, who was convicted under R.S. 14:95.1 of being a convicted felon who carries a concealed weapon, by using in the multiple-bill the same felony convictions alleged as elements of the offense. This issue is res nova in Louisiana.
The issue arose in this way. Clarence Sanders was twice convicted of committing armed robberies, once in 1955 and again in 1961. Again, in 1970, he was convicted of committing a felony, attempted simple burglary. Presumably having served his previous sentences, he was charged and convicted of violating R.S. 14:95.1, which makes it a crime for a convicted felon to carry a concealed weapon. In order to establish that he was a convicted felon, the state relied upon his 1961 conviction for armed robbery and his 1970 conviction for attempted simple burglary. He was tried in November of 1975, convicted, and sentenced to five years imprisonment. Although the record reflects that defendant Sanders noticed an appeal from that conviction, that appeal has not yet reached this Court. Instead, the matter before us concerns a bill of information filed by the state after conviction and sentencing, charging Sanders as a multiple offender under R.S. 15:529.1. In this charge the state relied upon all three of the prior offenses noted above, namely the two armed robberies and the attempted simple burglary. Sanders filed a motion to quash the multiple offender bill, alleging that the prosecution constituted double jeopardy and that the habitual offender statute was not intended by the legislature to be used, and may not be used, to enhance a penalty which has been imposed under R.S. 14:95.1, itself a status crime. The trial judge granted defendant's motion because he found that the state's "double use of the same conviction to cause first, a status crime, 14:95.1, and secondly, an enhancement under 15:529.1" constituted a violation of the prohibition against double jeopardy and/or collateral estoppel, and a violation of the guarantee of due process of law.
Before looking to the merits of the case, we must decide whether the matter is properly before the Court. We have held that under C.Cr.P. art. 912(B)(1), the state has no appeal from the quashing of a multiple offender information because it does not charge a substantive crime, but merely enhances the penalty. State v. Jackson, 298 So.2d 777 (La.1974). However, we notice that the state might have been afforded an appeal under an independent provision, C.Cr.P. art. 912(B)(3) which allows the state to appeal from an adverse ruling on "a plea of double jeopardy." Although the state would have had an appeal under that provision as it had existed under the 1921 Constitution, we have recently held that under the provisions of the 1974 Constitution, when the state seeks review of a final pre-conviction judgment or ruling in a criminal case, that review is possible
La.R.S. 14:95.1 is part of a 1975 amendment to the previously existing R.S. 14:95. The latter statute makes criminal the intentional concealment of a firearm, and various other offenses concerning weapons. It does not impose punishment for possession of a weapon. Anyone found in violation of R.S. 14:95 can be imprisoned no longer than six months and/or fined no more than five hundred dollars. R.S. 14:95(B).
In 1975 the legislature enacted special legislation to punish a person who has been convicted of certain enumerated felonies
In the case before us, the state has not been satisfied to allow defendant Sanders to be sentenced within the specially authorized maximum penalty provided in R.S. 14:95.1, but has attempted to further enlarge his penalty by multiple-billing him under R.S. 15:529.1. In doing this, it has attempted to use defendant's prior conviction twice: first, to establish his status as a convicted felon so as to convict him of the crime, and, second to increase the penalty through a multiple bill. The trial judge felt that this double use of the same convictions was barred by the prohibition against double jeopardy (or collateral estoppel) and by the guarantee of due process. Although we affirm the trial court's action in quashing the indictment, we do so for other reasons, finding it unnecessary to reach these constitutional issues.
The habitual offender statute, enacted in 1956, does not create a new or separate offense based on the commission of more than one felony but merely provides for imposition of an increased sentence for persons convicted of second and subsequent felonies. State v. Jackson, supra; State ex rel. Williams v. Henderson, 289 So.2d 74 (La.1974). It is a general statute designed to punish those who are repeat offenders. State v. Washington, 248 La. 894, 182 So.2d 528 (1966).
The firearms statute at issue here, R.S. 14:95.1, was enacted in 1975 and, as previously explained, provides that possession or concealment of a weapon by a person who has previously been convicted of one of the offenses therein enumerated is a felon, and that punishment therefor is confinement for three to ten years. Under the statute it is not the possession or concealment of a weapon—standing alone—which is a felony. It is made a felony only when the person committing the act has previously been convicted of one of the enumerated offenses. The act of possessing or concealing becomes a felonly only because the person has the status of convicted felon. Consequently, the legislature has itself imposed an increased penalty on a possessor or concealor of a weapon, if he is a felon, by means of this legislation specially aimed toward the convicted felon. We assume that the legislature was prompted to make this change because a person multiple-billed after conviction under the original statute, R.S. 14:95, could usually be given only a very short sentence.
In reaching this conclusion, we find persuasive the decisions of other state courts which have determined that habitual offender laws may not be used to further enhance penalties for status crimes.
Moreover, we also find persuasive the fact that the Louisiana legislature has, in a recent amendment to Article 893 of the Code of Criminal Procedure, indicated that the state can multiple-bill a person on the basis of a suspended sentence under that article.
Consequently, we find that the penalty provisions enacted in R.S. 14:95.1 were intended by the legislature to delimit the permissible punishment for that offense because the statute itself takes into account the fact of defendant's previous felony conviction and the legislature gave no indication that it wanted the multiple-billing procedure to remain available as a vehicle for further enlargement of the penalty.
For the reasons assigned, we conclude that the action of the trial court in quashing the indictment was correct. The state's application for supervisory writs (which is what we construe the state's attempt to appeal to be) is therefore denied.
Application for Rehearing
For the reasons expressed in our opinion in this case we construed the state's appeal as an application for writs, State v. James, 329 So.2d 713 (La.1976), and, doing so, found non-meritorious the state's complaints. Accordingly, we denied the application.
The state has now filed an application for rehearing. Because rehearings are not available from denial of a writ application, we may not consider the rehearing application. Rules of Supreme Court, rule IX, § 6; State v. Beamish, 206 La. 579, 19 So.2d 258 (1944); Blaize v. Hayes, 204 La. 298, 15 So.2d 228 (1943). See also State v. Mims, 330 So.2d 905 (La.1976), No. 57,073 on our docket wherein defendant's application for rehearing was not considered following our opinion in which we treated defendant's appeal as an application for supervisory writs, and, in so considering, denied the application.
However, inasmuch as the state's application points to a minor error in our original opinion, absent which, in our view, the result would have been no different, we choose to correct the opinion by means of this per curiam.
We related in our original opinion that a person convicted under La.R.S. 14:95 could be double-billed under La.R.S. 15:529.1. That, of course, is true if the person has been convicted under R.S. 14:95(C) for second offense concealed weapon or under R.S. 14:95(D) for third and subsequent offense concealed weapon. However, R.S. 14:95(B) for first offense concealed weapon is a misdemeanor and only on a felony conviction can a person be multiple-billed. Consequently, footnote five and the sentence of the original opinion which it modifies should thus be disregarded because as written it is incorrect and has no relevance to the decision.
The point which we attempted to make in surmising the legislative intent, however, is still appropriate. A prior felon convicted of his first violation of La.R.S. 14:95, a misdemeanor,