The issue before the court is whether the 1984 amendment to La.C.Cr.P. Art. 882 affected our holdings in State v. Jackson, 452 So.2d 682 (La.1984) and State v. Napoli, 437 So.2d 868 (La.1983) that an appellate court may not amend or set aside an illegally lenient sentence on its own motion, when the defendant alone has appealed and the prosecutor has not sought review of the sentence.
Defendant was convicted of armed robbery and attempted second degree murder. He was sentenced to twenty years imprisonment
Defendant appealed, complaining only that the trial court erred in denying his motion to suppress evidence used against him at trial. The prosecutor neither appealed nor sought any review or modification of the sentence. The court of appeal affirmed the conviction, but vacated the sentence for armed robbery as illegally lenient and remanded to the district court for resentencing. 471 So.2d 769. On defendant's application, we granted certiorari to review the judgment of the court of appeal, particularly with regard to the amendment of sentence.
In State v. Jackson, above, the defendant was convicted of simple burglary of a pharmacy and was sentenced as a multiple offender to ten years imprisonment at hard labor. The sentencing judge did not mention the mandatory denial of parole eligibility. Defendant alone appealed. The court of appeal affirmed the conviction and amended the sentence to provide that defendant was not eligible for parole, although the prosecutor had not raised the issue in the trial court and had not appealed or otherwise sought review in the appellate court. After granting certiorari, this court reinstated the sentence imposed by the trial court, holding that an appellate court, on an appeal by the defendant only, may not amend an illegal sentence so that the defendant is worse off for having exercised his right to appeal.
While the Jackson case was pending in this court, the Legislature enacted Acts 1984, No. 587, amending La.C.Cr.P. Art. 882 relative to correction of illegal sentences to read as follows:
The court of appeal in the present case concluded that Act 587 was apparently intended to overrule the Jackson case. In a very thorough opinion in the en banc decision, the appellate court noted that the defendant in a criminal case does not have a constitutional or statutory right to an illegal sentence. Quoting Bozza v. United States, 330 U.S. 160, 67 S.Ct. 645, 91 L.Ed. 818 (1947), the court stated that "[t]he constitution does not require that sentencing should be a game in which a wrong move by the judge means immunity for the prisoner". Further noting that the first sentence of the original Article 882 was taken from Fed.R.Crim.P. 35 and referring to federal decisions interpreting that rule, the court observed that an illegal sentence may be corrected by the sentencing court before an appeal is taken or after the time for appealing when no appeal has been taken, by the sentencing court while an appeal is pending, by an appellate court on appeal, or by the sentencing court after finality of the affirmation of the conviction and sentence on appeal. Finally, reasoning that Article 882 was not intended to permit only those corrections favorable to the defendant, the court held that it is the duty of both the
We disagree only with the intermediate court's conclusion that it is the duty of an appellate court to correct every illegal sentence that it discovers. The disagreement involves the proper allocation of functions between the prosecutor and the appellate court during the appeal in a criminal case.
When the trial court has imposed an illegal sentence, either the defendant or the prosecutor may move to correct the sentence in the trial court, or the trial court may raise the question on its own motion at any time.
Inasmuch as an illegal sentence is an error discoverable by a mere inspection of the proceedings without inspection of the evidence, La.C.Cr.P. Art. 920 (2) authorizes consideration of such an error on appeal. Further, La.C.Cr.P. Art. 882 A now authorizes correction (or remand for correction) by the appellate court.
Article 882 A, as amended, merely authorizes an appellate court to correct an illegal sentence on review. Nothing in the amendment suggests that an appellate court may correct an illegally lenient sentence of which the prosecutor has not complained. Article 882 B still requires an application for review of an illegal sentence by either the defendant or the prosecutor. Of course, the appellate court may correct a patent error when the matter is otherwise properly before the court on appeal, but there is no codal or statutory authority for an appellate court to search the record for patent sentencing errors to the detriment of the only party who sought review by the appellate court.
We also base our decision on the proper allocation of functions between the appellate court and the prosecutor. We note that the appearance of an impartial judiciary is not served when an appellate court supplies an objection to the prosecutor who has not complained that the defendant did not receive the harshest minimum sentence under the penalty statute. It is the prosecutor's duty to protect the state's interest in obtaining adequate sentences, and the criminal justice system suffers no detriment from the application of time-honored procedural rules which require the parties, and not the appellate court, to complain of some dissatisfaction with the judgment of the lower court in order to obtain any favorable change in the judgment or appeal. We therefore conclude that the amendment to Article 882 did not affect these basic procedural concepts, nor did it modify our holding in the Jackson case.
The portion of the judgment of the court of appeal which set aside the sentence is itself set aside, and the sentence imposed by the trial court is reinstated.
MARCUS, J., dissents.
WATSON, J., dissents and assigns reasons.
BLANCHE, J., dissents for reasons assigned by WATSON, J.
WATSON, Justice, dissenting:
Prior to the amendment of LSA-C.Cr.P. art. 882, an appellate court was required to disregard sentencing errors favorable to the defendant unless the prosecution raised the issue in the trial court and then sought appellate review. State v. Jackson, 452 So.2d 682 (La.,1984); State v. Napoli, 437 So.2d 868 (La.,1983). Jackson set forth the prior law as follows:
This jurisprudence was overruled when LSA-C.Cr.P. art. 882 was amended by Act 587 of 1984 to allow an appellate court, reviewing a case, to correct an illegal sentence on its own motion. The statute now provides:
The sentence, as corrected, will impose a valid rather than invalid punishment. See Bozza, supra. It was the appellate court's authority and duty to correct the invalid sentence, regardless of the state's action.
The majority fails to address the close issue, assigned as error, presented by the trial court's denial of defendant's motion to suppress evidence seized following an allegedly illegal stop.
At approximately 2:30 or 3:00 A.M., Baton Rouge Police Officer Joseph Ray Gauthier received a radio report of an armed robbery at the Admiral Motel parking lot on Airline Highway in East Baton Rouge Parish. An assailant had cut Raymond Davenport's throat, stabbed him, and stolen approximately $1,100, mostly in one hundred dollar bills. The victim informed the motel clerk that he was attacked by the man standing next to him when he paid his bill. The motel clerk, in reporting the attack, identified the culprit as a "white male". Shortly after receiving the report, while proceeding to the motel, Officer Gauthier spotted a "white male" walking at a fast pace along Airline Highway approximately one-half mile from the Admiral Motel. Thinking it was very unusual for someone to be walking there at that time of morning, the officer stopped the man, Byron Fraser.
Upon arriving at the scene of the robbery, Fraser got out of the patrol car and blood was observed on his pants and shoes. Officer Netterville advised Fraser of his
Fraser contends that Officer Gauthier did not have the reasonable suspicion of criminal conduct necessary for an investigatory stop, and therefore all evidence gathered as a result of that stop should be suppressed.
The United States Constitution and the Louisiana Constitution secure persons against unreasonable searches and seizures.
The broad description of this suspect may not alone have justified the stop, but it is an important factor when viewed in context. The totality of the circumstances must be considered in determining whether reasonable cause exists for an investigatory stop. Belton, supra, at 1198. It was reasonable for Officer Gauthier to stop Fraser when he saw a white male walking at a fast pace approximately one-half mile from the scene of a crime in an area where it was unusual to see people walking during the early morning hours.
Since the detention was legal, it must be determined whether the police officer went beyond the limits of the investigatory stop when he took Fraser to the motel. An officer does not exceed the limits of a permissible investigatory stop when a suspect voluntarily consents to accompany the officer to another location. See Ossey, supra. According to Gauthier's testimony, Fraser freely and willing agreed to go to the Admiral Motel.
The close issue of defendant's motion to suppress should be addressed by the majority even though the Court of Appeal did not err. The Court of Appeal correctly vacated Fraser's illegally lenient sentence.
I respectfully dissent.
"A. A law enforcement officer may stop a person in a public place whom he reasonably suspects is committing, has committed, or is about to commit an offense...."