State Of Louisiana v. Michael Benbow

STATE OF LOUISIANA
COURT OF APPEAL, FIRST CIRCUIT

STATE OF LOUISIANA NO. 2020 Kw 0118
VERSUS

MICHAEL 3ENBOW

MAY 12 2020

In Re: Michael Benbow, applying for supervisory writs, 22nd
Judicial District Ccurt, Parish of St. Tammany, No.
503077

BEFORE: McDONALD, THERIOT, AND CHUTZ, JJ.

WRIT GRANTED. The district ccurt’s ruling = denying
relator’s motion to correct an illegal sentence is reversed.
For a viclation of La. R.S 40:967 (A} (1) the penalty is
imprisonment at hard labor for not less than two years nor more
than thirty years, with the first two years of said sentence
being without benefit of parole, probation, or suspension of
sentence and a fine of not more than $50,000. See La. R.S.
40:967(B) (4) (ob); see also State v. Payne, 2017-13 (La. App. 5th
Cir. 5/17/17), 220 So.3d 889, 897-98. Additionally, La. R.S.
15:529.1(G) provides that the sentence for a second felony
habitual offender shall be at hard labor without benefit of
probation ocr suspension of sentence; however, it does not
restrict parole. The restrictions on parole eligibility imposed
on habitual offender sentences under La. R.S. 15:529.1 “are
thess called for in the reference statute.” State v. Esteen,
2001-879 (La. App. Sth Cir. 5/15/02), 821 So.2d 60, 79 n.24,
writ denied, 2002-1540 (La. 12/13/02), 831 So.2d 983. Thus, the
district court erred in restricting parole eligibility for the
entirety of relator’s sentences. An illegal sentence may be
corrected at any time by the court that imposed the sentence, or
by an appellate court on review. see La. Code Crim. P. art.
882(A). Accordingly, relator’s sentence on count ene is amended
to reflect that only two years are to be served without benefit
of parole, probation or suspension of sentence. Relator’s
sentence as a habitual offender on count two is amended to
reflect that only two years are to be served without benefit of
parole, This matter is remanded to the district court to amend
the sentencing minutes and commitment order to reflect this
court’s ruling.

MRT

COURT OF APPEAL, FIRST CIRCUIT

DE PU LERK GF COURT
FOR THE COURT