State of Louisiana v. Richard Ordner

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

06-1054

STATE OF LOUISIANA

VERSUS

RICHARD ORDNER

**********
APPEAL FROM THE
THIRTY-THIRD JUDICIAL DISTRICT COURT
PARISH OF ALLEN, DOCKET NO. CR-2004-4851
HONORABLE PATRICIA C. COLE, DISTRICT JUDGE
**********

SYLVIA R. COOKS
JUDGE

**********

Court composed of Ulysses Gene Thibodeaux, Chief Judge, Sylvia R. Cooks, and
Elizabeth A. Pickett, Judges.

AFFIRMED, AS AMENDED AND REMANDED.

Dmitrc I. Burnes
711 Washington Street
P.O. Box 650
Alexandria, LA 71309-0650
(318) 448-0482
COUNSEL FOR DEFENDANT/APPELLANT:
Richard Ordner

Douglas L. Hebert, Jr., District Attorney
Sherron Ashworth, Assistant District Attorney
P.O. Box 839
Oberlin, LA 70655-0839
(337) 639-2641
COUNSEL FOR APPELLEE:
State of Louisiana

COOKS, Judge.

FACTS AND PROCEDURAL HISTORY

On the evening of September 3, 2004, the Defendant, Richard Ordner, was at

the Uskitchitto River near Mittie, Louisiana for a party. Approximately twenty

minutes after arriving at the party with his girlfriend, Jennifer Martin, four males

approached his vehicle while he was sitting in the passenger seat of the vehicle.

When the men were approximately fifteen feet from the vehicle, Defendant fired a

shot into the air with his 9 mm pistol and the men turned and ran away. Defendant

fired two more shots and one struck the victim, Jody Robinson. Defendant then ran

into the woods where he discarded the gun.

On December 22, 2004, Defendant was charged by bill of information in count

one with illegal use of weapons or dangerous instrumentalities, in violation of La.R.S.

14:94, and in count two with aggravated battery/discharge of firearm, in violation of

La.R.S. 14:34. Defendant was arraigned on January 11, 2005 and entered a plea of

not guilty.

The State filed a Notice of Intent to Seek Enhancement of Sentence under

La.Code Crim.P. art. 893.3. Defendant filed a Motion in Limine and objected to the

State’s intent to seek enhancement of the sentence. A hearing was scheduled, but the

parties waived the hearing and agreed to have the trial court rule on the

motion/objection based on the briefs submitted. In its opinion and ruling dated

December 12, 2005, the trial court noted the State did not specify as to which count

it sought to enhance and ultimately concluded that the State could enhance only count

two (aggravated battery/discharge of firearm), thereby granting the Defendant’s

motion as to count one and denying same as to count two.

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Defendant waived his right to a jury trial, and following a bench trial,

Defendant was found guilty as charged. Defendant was sentenced on count one to

serve two years at hard labor with the eligibility for diminution of time, and on count

two, ten years at hard labor to run concurrently and without benefit of parole,

suspension of sentence and diminution of time. Defendant was also ordered to pay

court costs of $994.00. A motion to reconsider sentence was filed wherein the trial

court was asked to reconsider Defendant’s ten year sentence. The motion was denied

without reasons. Defendant now seeks an appeal, setting forth two assignments of

error.

ASSIGNMENT OF ERROR NO. 1

In this assignment of error, Defendant argues the trial court erred in finding

him guilty because he was acting in self defense. More specifically, Defendant

maintains he was in reasonable apprehension of receiving a battery when he was

approached by four to six drunken men spoiling for a fight, and he took steps to

defend himself, justifiably firing shots into the air. Alleging his actions were

justifiable, Defendant concludes they did not provide the basis for criminal intent.

Although Defendant does not specify which conviction should be set aside in

setting forth this assignment of error, he requests at the conclusion of his argument

that we overturn both of his convictions. Accordingly, we will address each

conviction in light of Defendant’s claim of self defense.

The illegal use of a weapon is defined in La.R.S. 14:94 as “. . . the intentional

or criminally negligent discharging of any firearm . . . where it is foreseeable that it

may result in death or great bodily harm to a human being.” Aggravated battery is

defined in La.R.S. 14:34 as “. . . a battery committed with a dangerous weapon.” Self

defense is addressed in La.R.S. 14:19 as follows:

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The use of force or violence upon the person of another is
justifiable, when committed for the purpose of preventing a forcible
offense against the person or a forcible offense or trespass against
property in a person's lawful possession; provided that the force or
violence used must be reasonable and apparently necessary to prevent
such offense, and that this article shall not apply where the force or
violence results in a homicide.

Defendant testified that he arrived at the river around 11:00 or 12:00 p.m.,

about twenty minutes before the shooting. He had been drinking beer since about

9:00 p.m. and had consumed approximtely ten beers prior to the shooting. He denied,

however, that he was intoxicated.

Defendant testified he had been in a fight with Chris Darbonne, Jonathon

Darbonne’s brother, prior to the evening of the shooting. He described the altercation

as a “one time thing.” While at the bonfire on the night of the shooting, Defendant

spoke with Jonathon Darbonne and apologized to Jonathon about the fight with his

brother. According to Defendant, the two shook hands and Jonathon said that it was

all right. After speaking to a few more people, Defendant went to his truck, sat down

on the passenger side and lit a cigarette.

Next, Defendant testified that out of the corner of his eye, he saw five to six

men approaching him. He recalled seeing Justin and Jonathon Darbonne, Roger

Gurganus and a man who he originally thought was Jody Robinson, the victim. He

was unsure of Jody Robinson’s identity. According to Defendant, the group of men

came around the side of his truck and he was hit twice in the head. Next, two of the

men grabbed Defendant, pulled him from the truck and then they all began hitting

him. Defendant was able to grab his gun that was laying on the seat while they were

beating on him and he fired a shot into the air. Defendant stated that the fighting

continued. After getting to his feet, he fired a second shot, but the fighting did not

stop. Next, Defendant fell to the ground and he fired a third shot. At that time, the

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men quit hitting him and he crawled through the bushes and took off running.

Defendant testified he was unaware that he had hit someone. Defendant denied

aiming toward any of the men when he fired the gun and stated that he did not intend

to strike anyone and was trying to retreat. Lastly, Defendant stated he never saw Jody

Robinson that evening, that he did not know that he had shot in an area near Jody, nor

did he aim his gun at anyone. Further, the investigators photographed the injuries to

Defendant’s face and the bloody T-shirt he was wearing that evening. According to

Defendant, the injuries and bloody T-shirt were a result of the fight.

Three of the men that approached Defendant on the night of the shooting were

called by the State to testify and their testimonies differed significantly from that of

Defendant. First, Roger Gurganus testified he was at the river the night of the

shooting and there were about fifty other people camping out that night. Roger added

that he had been there since noon and was intoxicated at the time of the shooting.

Prior to the shooting, Roger walked up to the Defendant, shook his hand and talked

with him. Minutes later, Roger heard something about a fight so he, Justin Darbonne

and Jonathon Darbonne walked up to the front of the Defendant’s truck to see what

was going on. Roger testified Defendant was sitting in his truck with the door open

and when they were about fifteen feet away from the truck, Defendant exited the truck

with a gun. According to Roger, there was no physical confrontation with Defendant,

the men never got near Defendant and nothing was said to Defendant. Next,

Defendant pointed the gun up in the air, fired a shot and said he did not want any

trouble.

Meanwhile, Jody Robinson, the victim, went around the back of truck and was

shot. Roger testified he did not see Jody get shot. Roger stated that after the shooting

began, he blacked out and when he came to, he was beating up Defendant’s truck.

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Roger denied walking up to Defendant for the purpose of beating him up. He

admitted he removed his shirt, but denied any intent to beat up Defendant.

Next, Justin Darbonne testified that he arrived at the river with his cousin,

Jonathon Darbonne, around 5:00 to 6:00 p.m. He said Defendant was there at that

time. Justin stated he was not intoxicated, claiming he was not a big drinker. Later

on in the evening, Justin, along with Jonathon, Roger and John Lafleur, walked

toward Defendant’s truck. Justin stated Defendant was sitting in the truck on the

passenger side with the door open. According to Justin, they did not exchange any

words, none of them removed their shirts as they approached the Defendant’s truck

and there was no fighting with the Defendant. Suddenly, Defendant jumped out of

his truck with a gun and said he did not want any “shit.” Justin saw Defendant shove

a clip into the gun and shift the chamber back to put a round in the gun. Then

Defendant began waving the gun around, pointed the gun at Justin and then shot up

into the air twice. Justin estimated they were about ten feet from Defendant’s truck

when he started firing. Justin did not see Defendant shoot the victim because he had

run away and was hiding in the creek.

Additionally, Justin testified that Jonathon did not get along too well with

Defendant. He admitted that there had been a previous fight between Jonathon and

Defendant. Justin denied, however, going to Defendant’s truck to engage in a fight.

He explained they walked over so Jonathon could speak with the Defendant about

why they were not getting along. Justin admitted, nonetheless, that if speaking with

Defendant did not work, then he intended on fighting Defendant. Lastly, Justin stated

that he did not see Jody as they were walking toward the truck.

Jonathon Darbonne testified that on the night of the shooting, Defendant called

him over to speak to him. According to Jonathon, they spoke about the fight between

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Defendant and Jonathon’s brother, Chris, then Defendant apologized for same and

they shook hands. Later, Jonathon walked toward Defendant’s truck and several

people were walking behind him. He took his shirt off as he was walking toward

Defendant, but denied the intent to fight. Jonathon admitted, however, if Defendant

had made him mad, he would have hit him. Jonathon also denied saying anything to

Defendant as he approached him. Further, Jonathon denied hitting Defendant that

evening and stated than none of the other men hit Defendant.

Jonathon testified when he was about fifteen feet away, Defendant cocked his

gun and said he did not want any “shit.” Next, Defendant shot the gun into the air

two times. After the first shot, Jonathon ran into the woods. Jonathon stated he did

not see Jody Robinson around at that time. When the third shot rang out, Jonathon

stated he was well into the woods.

The victim, Jody Robinson, testified he knew Justin, Jonathon, Roger and John,

but was not with the group when they approached the Defendant’s truck prior to the

shooting. Just before the first shot, Jody had left the area between the fire and the

creek and was headed to Mr. O’Quinn’s truck to retrieve a pen. As he was returning

to the fire, Jody heard a female say something about a gun and he inquired about the

location of same. Jody was directed to the area of Defendant and he proceeded to

walk in that direction until he came upon Defendant.

As Jody first approached Defendant, Jody explained he had a glow stick in his

pocket and was not hiding his position or trying to threaten Defendant. Instead, Jody

was telling Defendant that a gun was not needed. Next, Jody watched as the

Defendant fired a shot into the air. He was about ten feet from Defendant at that time.

Jody stated he did not move prior to the shot or after the shot. Jody explained he

looked over his right shoulder, then his left, noting that no one was coming around

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him or from behind him. Before he could complete his next sentence, Defendant

pointed the gun at Jody and fired a second shot. About ten seconds elapsed between

the first and second shots. Jody’s medical records reveal he sustained a gunshot

wound to his right neck with an exit wound in the right suprascapular area, indicating

that he was facing the Defendant when he was shot.

Brittany Henry, an eyewitness to the shooting, testified she was at the river the

evening of the shooting, but was not intoxicated. Prior to the shooting, Brittany was

at the campfire and left when she heard there was going to be a fight. Brittany saw

Defendant sitting in his truck with the door open and saw Justin, Jonathon, Roger and

John walk toward Defendant’s truck. She stated Jody was not with the group. As the

men were walking toward the truck, Roger and John removed their shirts and the men

were talking about fighting Defendant. Next, Joey O’Quinn approached the men and

Brittany heard him telling the men that the fight should be one on one.

As the men approached the truck, Brittany heard the men yelling at Defendant,

saying that they were going to “kick his ass.” Next, Brittany saw Defendant pull a

gun out of the truck and fire a shot into the air when the men were ten to fifteen feet

from the Defendant’s truck. According to Brittany, there was no physical contact at

all between the men prior to the shooting. After the first shot, the four men ran away

and Brittany ducked behind Jarrett O’Quinn’s truck.

When Brittany first saw Jody, he was approaching Defendant after the first shot

was fired. She was not sure from where Jody had come. She testified Jody was

trying to convince Defendant to put the gun away, talking as he was walking toward

the truck. As Jody came close to him, Defendant took a step toward Jody, pointed the

gun directly at him and fired a second shot. Then, Defendant took a step back and

fired a third shot into the air and ran into the woods.

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Detective Ben Perkins was called as a defense witness and testified when

Defendant came in to give a statement around 5:00 a.m., he photographed the

Defendant’s face. Defendant had a swollen lip and a gash or mark around his left eye.

Defendant reported to Detective Quirk that the injuries resulted from an altercation

at the river with Justin, Jonathon and Roger. Although Defendant claimed he

received his injuries from a fight with these men, Detective Perkins did not conclude

a battery had been committed and none of the men were charged with battery.

Defendant stated he was approached by these men and a fight ensued. Defendant also

claimed the shots he fired were in self defense to get the men away from him and that

he never intended to strike or hit anyone.

Detective Perkins also testified that during his investigation, Jonathon

Darbonne and John Lafleur were charged with simple assault based on their

statements that they verbally threatened the Defendant with bodily harm. Justin

Darbonne and Roger Gurganus were charged with simple criminal damage to

property in an amount in excess of $1,000.00 for which both men pled guilty.

The trial court did not find Defendant’s testimony to be credible with regard

to Defendant firing the gun three times before the men would stop beating him. The

court found more credible the testimony that the men ran after the first shot.

However, the trial court did believe that Defendant was scared of receiving a battery

from the men when he pulled out his gun and fired the first round. Considering same,

the trial court concluded as follows:

So, from that point on the actions of Mr. Ordner were no longer
reasonably and apparently necessary to prevent a battery. That had left.
That threat was over, the boys were scattered. Yet Mr. Ordner
discharged his weapon two more times and someone was shot.
Mr. Ordner, who had been drinking himself made the choice to bring a
loaded weapon to a party at midnight were there was little lighting and
where there were at least twenty-five and as many as fifty young people
present, many of whom had been drinking since daylight hours. It was

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foreseeable that the discharge of the weapon, even shooting in the air
could result in death or great bodily injury. So, consequently the Court
finds beyond a reasonable doubt that Mr. Ordner is guilty of illegal
discharge of a weapon.

Next, the trial court considered the evidence presented in support of the charge

of aggravated battery. Based on the evidence presented, the court opined that Jody

Robinson was not with the group of men. The court noted that only Defendant’s

testimony indicated that Jody might have been with the group of men who set out to

harm him. However, Defendant’s testimony contradicted itself in that he first

testified he was not sure if he saw Jody with the group, and then later testified that he

did not see Jody at all that evening. Also, the court observed there was no testimony

by anyone placing Jody with the group of men that approached Defendant.

With regard to intent, the trial court held that intent can be inferred from the

fact that Defendant aimed a loaded gun at Jody and fired at him as supported by the

testimony of Jody Robinson and Brittany Henry. Further, the court noted that the

direction of Jody’s wound corroborates their testimony that the gun was leveled at

Jody and fired. Although there were some inconsistencies, the court found the

testimony of Ms. Henry was credible and corroborated by Jody Robinson, the

Darbonnes and Roger Gurganus as well as the direction of the wound. Considering

same, the trial court ultimately held Defendant was guilty of aggravated battery with

a firearm.

The State was not required to show intent for the illegal use of a weapon. In

lieu of intent, the State was required to show criminal negligence. As stated by the

trial court, Defendant made the choice to bring a loaded gun to a late night party

attended by several young people who had been drinking all day. Considering same,

we find no error by the trial court in finding Defendant was criminally negligent in

firing the gun, regardless of his intention, and it was foreseeable that the discharge

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of the gun could have caused great bodily injury in this situation.

As to Defendant’s conviction for aggravated battery, Defendant had the burden

of proving self defense – that the use of the gun was justifiable to prevent a forcible

offense against his person. First, the trial court concluded from the evidence

presented that the group of men which were allegedly the aggressors had fled the

scene after Defendant fired the first shot. It was a subsequent shot, either the second

or third shot, which resulted in the harm to the victim. Once the aggressors ran from

the scene following the first show, there was no longer a perceived threat of harm.

There is no testimony or evidence which indicates that Jody Robinson was ever a

threat to Defendant or that he approached Defendant in an aggressive manner when

he arrived on the scene to convince Defendant to put the gun away. Thus, there was

no justification for Defendant’s action when he fired the gun a second and third time

which resulted in the victim’s injury. Accordingly, we will set aside the trial court’s

decision in the absence of manifest error. Rosell v. ESCO, 549 So.2d 840 (La.1989).

ASSIGNMENT OF ERROR NO. 2

In his final assignment of error, Defendant argues the trial court erred in

applying La.Code Crim.P. art. 893.3(D) in sentencing him, alleging he was never

advised that it was being applied against him. The notice requirement for the

imposition of sentence under La.Code Crim.P. art. 893.3 is provided for in Article

893.1, which reads:

A. If the district attorney intends to move for imposition of
sentence under the provisions of Article 893.3, he shall file a motion
within a reasonable period of time prior to commencement of trial of the
felony or specifically enumerated misdemeanor in which the firearm was
used.

B. The motion shall contain a plain, concise, and definite written
statement of the essential facts constituting the basis for the motion and
shall specify the provisions of this Chapter under which the district
attorney intends to proceed.

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First, as stated by Defendant, the bill of information indicates Defendant was

charged under La.Code Crim.P. art. 893.3(E)(1)(a) which states:

Notwithstanding any other provision of law to the contrary, if the
defendant commits a felony with a firearm as provided for in this
Article, and the crime is considered a violent felony as defined in this
Paragraph, the court shall impose a minimum term of imprisonment of
ten years. In addition, if the firearm is discharged during the
commission of such a violent felony, the court shall impose a minimum
term of imprisonment of twenty years.

A violent felony is defined in La.Code Crim.P. art. 893.3(E)(1)(b) as “ . . . second

degree sexual battery, aggravated burglary, carjacking, armed robbery, second degree

kidnapping, manslaughter, or forcible rape.”

On August 25, 2005, the State filed notice of its intent to seek enhancement of

sentence under Article 893.3. The State requested Defendant be sentenced under the

provision of Article 893.3, in general, but did not indicate a specific subsection.

Next, Defendant filed a motion in limine and objection to the State’s intent to seek

enhancement of his sentence. Defendant’s objection to the enhancement was based

on a claim of double jeopardy, not the argument made herein. As noted by the State,

Defendant did not refer to a specific subsection in making his argument.

Upon consideration of the parties’ briefs, the trial court concluded Article

893.3 applied to the charge of aggravated battery, but not to illegal use of weapons.

In its written opinion and ruling, the trial court does not refer to a specific subsection

of Article 893.3. Also, the trial court found that proper notice notifying Defendant

of the State’s intent to seek enhancement of sentence in accordance with Article 893.3

had been made.

At sentencing, the trial court noted once more there had been notification of the

State’s intent to seek enhancement of Defendant’s sentence under Article 893.3.

Later, Defendant objected to the enhancement of his sentence under 893.3(E)(1)(a),

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as set forth in the bill of information and argued that it did not apply to the instant

case because the conviction did not fit any of the violent felonies as defined in

subsection E. Considering same, Defendant argued he had not been given proper

notice of which enhancement was going to be used, and thus, the enhancement could

not be used against him.

The State argued the general wording of its notice gave adequate and specific

notice that it would seek enhancement due to the use of a firearm during the

commission of a violent felony and the trial court agreed. In reaching its conclusion,

the trial court took note of the incorrect subsection in the bill of information, but also

noted that the State had filed a separate notice stating that Article 893.3 was going to

be used. The court found the State’s notice provided the specific facts containing the

basis of the motion and that the facts fit under the appropriate subsection.

Thus, we conclude the State’s notice was adequate. Although the bill of

information incorrectly states the applicable subpart of Article 893.3, the State’s

notice was general and encompassed all the subsections. Defendant was not surprised

at sentencing by the State’s intent to enhance his sentence.

ERRORS PATENT

In accordance with La.Code Crim.P. art. 920, all appeals are reviewed for

errors patent on the face of the record. After reviewing the record, we find one error

patent involving the sentence imposed and one error in the minutes of sentencing.

First, the trial court erroneously denied Defendant eligibility for diminution of

sentence for aggravated battery. Prior to imposing Defendant’s sentences, the judge

stated, “And finally 15:571.3(C)(d), says the defendant is not eligible for diminution

of sentence for the crime of aggravated battery.” When imposing the Defendant’s

sentence for aggravated battery, the judge stated, “On the charge [of aggravated

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battery] you are not eligible for diminution of sentence in accordance with

15:571.3(C)(1)(d).”1

Louisiana Code of Criminal Procedure Article 894.1(D)(1) requires the trial

court to advise Defendant, immediately following the imposition of a felony sentence,

“[w]hether, pursuant to the provisions of R.S. 15:571.3, the offender’s sentence is

subject to diminution for good behavior.” Louisiana Code of Criminal Procedure

Article 894.1(D)(2) also requires a trial court to advise Defendant whether the

sentence was “enhanced pursuant to R.S. 15:529.1 et seq., Article 893.3, or any other

relevant provision of law.” It does not appear from the court’s statements that it

complied with La.Code Crim.P. art. 894.1’s requirement. Around the time of the trial

court’s statement regarding diminution ineligibility, there was no advisement

regarding enhancement.

The trial court’s statement was not merely an advisement, but was an actual

denial of eligibility for diminution of sentence. See State v. Davis, 05-543 (La.App.

3 Cir. 12/30/05), 918 So.2d 1186, writ denied, 06-587 (La.10/13/06), __ So.2d __,

wherein this court found the trial court’s statement, “you’re not eligible for

diminution of sentence, for good time under Louisiana Revised Statute 15:571.3C

because you have been convicted one or more times of violations of the Louisiana

Controlled Dangerous Substances Law, which are felonies,” was an actual denial of

diminution eligibility rather than an advisement of such eligibility. This court

amended that defendant’s sentence to delete the statement denying diminution of

sentence.

In State v. Narcisse, 97-3161, p. 1 (La. 6/26/98), 714 So.2d 698, 699, the

1
Later in the proceeding, after the judge had imposed the sentences, she was asked to
clarify her reference to La.Code Crim.P. art. 893.3. In doing so, she stated, “As far as the other
mentions, that was simply to say where I got no suspension. Those are all legislatively
mandated, no parole and that there is no diminution of sentence for that charge.”

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supreme court stated the following regarding a trial court’s authority to deny

eligibility for diminution of sentence:

[A] trial judge lacks authority under La.R.S. 15:573.1(C) to deny a
defendant eligibility for good time credits against his sentence, because
that statute is “directed to the Department of Corrections exclusively.”
State ex rel. Simmons v. Stalder, 93-1852 (La. 1/6/96), 666 So.2d 661.
Moreover, even the Department of Corrections lacks that authority
under La.R.S. 15:571.3(C) in a case in which the trial court has not
formally adjudicated and sentenced the defendant as a multiple offender
under the provisions of La.R.S. 15:529.1. When the sentencing court is
of the opinion that a denial of diminution of sentence is warranted under
the specific circumstances of the case, the trial judge’s discretion should
be exercised under La.C.Cr.P. 890.1(B).

Id. at 699. See also State v. Hotard, 04-1092 (La. 10/15/04), 885 So.2d 533.

Louisiana Code of Criminal Procedure Article 890.1 states:

A. When the court imposes a sentence, the court shall designate
whether the crime involved is a crime of violence or an attempted crime
of violence as defined or enumerated in R.S. 14:2(13).

B. Notwithstanding any provision of law to the contrary, if a
person is convicted of or pleads guilty to a crime of violence as defined
or enumerated in R.S. 14:2(13) and is sentenced to imprisonment for a
stated number of years or months, the sentencing court may deny or
place conditions on eligibility for diminution of sentence for good
behavior unless diminution of sentence is prohibited by R.S.
15:571.3(C) or (D).

Although the offense involved in the present case is enumerated as a crime of

violence in La.R.S. 14:2(13), the trial court made no indication that the offense was

considered a crime of violence. Thus, the trial court was not exercising its authority

to deny diminution eligibility under La.Code Crim.P. art. 890.1. The trial court’s

statement regarding diminution eligibility was not an advisement in compliance with

La.Code Crim.P. art. 894.1(D). Accordingly, the trial court’s statement regarding

diminution was improper and Defendant’s sentence for aggravated battery should be

amended to delete the denial of diminution eligibility. The case is remanded and the

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district court instructed to make the necessary corrections in the minutes.2

Lastly, the minutes of sentencing are in need of correction. The minutes state,

“THE COURT SENTENCES THE DEFENDANT AS FOLLOWS: ILLEGAL USE

OF WEAPON /2 YEARS AT HARD LABOR WITH THE DEPARTMENT OF

CORRECTIONS WITH THE BENEFIT OF DEPRICATION OF TIME.” The

transcript indicates that after the judge imposed the two year sentence, she stated,

“Diminution of sentence for good behavior shall be earned. . . .” Thus, the trial court

should be instructed to amend the minutes of sentencing to indicate Defendant’s

sentence for illegal use of a weapon is “with the benefit of diminution of sentence”

rather than “with the benefit of deprication of time.”

DECREE

For the foregoing reasons, Defendant’s convictions and sentences are affirmed.

However, Defendant’s sentence for aggravated battery is amended to delete the denial

of diminution eligibility. The case is remanded and the district court instructed to

make the necessary corrections in the minutes. Additionally, the trial court is

instructed to amend the minutes of sentencing to indicate Defendant’s sentence for

illegal use of a weapon is “with the benefit of diminution of sentence” rather than

“with the benefit of deprication of time.”

AFFIRMED, AS AMENDED AND REMANDED.

2
Because this issue is being discussed in an error patent review, we have not reviewed
whether the trial court’s advice is correct as to Defendant’s ineligibility in accordance with
La.R.S. 15:571.3. In other words, we have not determined whether Defendant is, in fact,
ineligible for diminution of sentence under La.R.S. 15:571.3.

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