Opinion
No. 82-K-0094.
February 19, 1982.
Writ Granted. On this post conviction application we vacate the ruling of the trial court and return this matter to the district court for re-opening of the evidentiary hearing.
At the evidentiary hearing which was held in the district court on November 20, 1981, the trial judge, defense counsel, and the assistant district attorney, focusing on the defendant's guilty plea to attempted forcible rape and whether it was knowing and voluntary when entered, were all apparently under the mistaken impression that at the time of the offense La.R.S. 14:42 still provided for the death penalty relative to the aggravated rape offense with which defendant was originally charged. In fact, the statute had been amended by Act 343 of 1977 effective September 9, 1977, to provide for the penalty of life imprisonment, not death. The offense occurred on or about February 18, 1978. His guilty plea was entered on May 30, 1978.
An appropriate and just decision on the defendant's application can be made only when the evidence is presented by witnesses cognizant of the state of the law at the time of the offense and of entry of the guilty plea.
MARCUS, BLANCHE and WATSON, JJ., would deny the writ.