State of Louisiana v. Kenneth G. Billingsley

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

11-1425

STATE OF LOUISIANA

VERSUS

KENNETH G. BILLINGSLEY

**********

APPEAL FROM THE
FOURTEENTH JUDICIAL DISTRICT COURT
PARISH OF CALCASIEU, NO. 31468-10
HONORABLE DAVID KENT SAVOIE, DISTRICT JUDGE

**********

SHANNON J. GREMILLION
JUDGE

**********

Court composed of J. David Painter, Shannon J. Gremillion, and Phyllis M. Keaty,
Judges.

SENTENCE VACATED; REMANDED FOR RESENTENCING.

John Foster DeRosier, District Attorney
Fourteenth Judicial District
P. O. Box 3206
Lake Charles, LA 70602-3206
(337) 437-3400
COUNSEL FOR APPELLEE:
State of Louisiana

Carla Sue Sigler
Assistant District Attorney
P. O. Box 3206
Lake Charles, LA 70602
(337) 437-3400
COUNSEL FOR APPELLEE:
State of Louisiana

Edward Kelly Bauman
Louisiana Appellate Project
P. O. Box 1641
Lake Charles, LA 70602-1641
(337) 491-0570
COUNSEL FOR DEFENDANT/APPELLANT:
Kenneth G. Billingsley

GREMILLION, Judge.

A jury found that Defendant, Kenneth G. Billingsley, committed an armed

robbery with the use of a firearm. Defendant challenged his conviction in this

court, assigning multiple errors. We affirmed. See State v. Billingsley, 11-790

(La.App. 3 Cir. __/__/__), __ So.3d __.

Thereafter, Defendant was adjudicated a second felony offender pursuant to

La.R.S. 15:529.1, and he was sentenced to seventy-five years imprisonment

without the benefit of probation, parole, or suspension of sentence, to be served

consecutively to a seven-year sentence on a probation violation.

On appeal, Defendant raises one assignment of error regarding his sentence.

He alleges that the sentence was excessive. However, we find that the sentence

must be vacated and the matter remanded to the trial court for resentencing.

Accordingly, the assignment of error in this case is moot.

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, there is one

error patent regarding the habitual offender sentence.

The trial court imposed an indeterminate sentence. Defendant was convicted

of armed robbery with use of a firearm, violations of La.R.S. 14:64 and 14:64.3.

Following a habitual offender hearing, the trial court found Defendant to be a

second felony offender. The trial court sentenced him to seventy-five years at hard

labor without the benefit of probation, parole, or suspension of sentence.

Louisiana Revised Statute Article 14:64.3 provides in pertinent part:

A. When the dangerous weapon used in the commission of the
crime of armed robbery is a firearm, the offender shall be imprisoned
at hard labor for an additional period of five years without benefit of
parole, probation, or suspension of sentence. The additional penalty
imposed pursuant to this Subsection shall be served consecutively to
the sentence imposed under the provisions of R.S. 14:64.

In State v. King, 06-1903 (La. 10/16/07), 969 So.2d 1228, the supreme court

held that a defendant convicted of armed robbery and sentenced under the habitual

offender law can be sentenced to an additional five years under La.R.S. 14:64.3

when the dangerous weapon used in commission of the armed robbery is a firearm.

In State v. McGinnis, 07-1419 (La.App. 3 Cir. 4/30/08), 981 So.2d 881, the

defendant was charged with armed robbery with a firearm, violations of La.R.S.

14:64 and 14:64.3, and convicted as charged. The trial court adjudicated the

defendant a second felony offender on the charge of armed robbery with a firearm

and sentenced him to serve fifty years at hard labor. On error patent review, this

court held in pertinent part:

This court finds that the absence of a specification that the
Defendant’s habitual offender sentence included an enhanced term of
imprisonment under La.R.S. 14:64.3 renders this sentence
indeterminate. Therefore, this court hereby vacates the habitual
offender sentence and remands for resentencing in accordance with
La.R.S. 15:529.1 and 14:64.3. The trial court should clearly set forth
the portion of the sentence enhanced under La. R.S. 14:64.3.

Id. at 889.

In this case, Defendant was convicted of armed robbery with use of a

firearm. The trial court failed to impose a separate five-year sentence to run

consecutively to the habitual offender sentence, rendering Defendant’s sentence

indeterminate.1

DECREE

Defendant’s habitual offender sentence imposed for the conviction of armed

robbery with the use of a firearm is vacated, and the matter is remanded to the trial

court for resentencing in accordance with La.R.S. 15:529.1 and 14:64.3. The trial

1
At the sentencing proceeding, it appears the State incorrectly informed the trial court that
the five years under La.R.S. 14:64.3 should not be added because the sentence was being
enhanced under La.R.S. 15:529.1.
2

court must clearly set forth the portion of the sentence enhanced under La.R.S.

14:64.3.

SENTENCE VACATED; REMANDED FOR RESENTENCING.

3