Opinion
NO. 2016 KW 0651
07-11-2016
STATE OF LOUISIANA v. TYRONE MICHAEL SMITH, JR.
In Re: Tyrone Michael Smith, Jr., applying for supervisory writs, 32nd Judicial District Court, Parish of Terrebonne, No. 372315. BEFORE: McDONALD, McCLENDON, AND WELCH, JJ.
WRIT DENIED. Any challenge to a previous conviction which is not made before sentence is imposed may not thereafter be raised to attack the sentence. See La. R.S. 15:529.1(D)(1)(b). Furthermore, the appeal reflects that the district court judge did not impose sentences following relator's convictions for the underlying offenses because the State immediately filed a habitual offender bill of information against relator. Thus, there were no original sentences to vacate. See La. R.S. 15:529.1(D)(3). The appeal further reflects that before the judge accepted relator's admission of his habitual offender status, the judge apprised relator of his right to a habitual offender hearing at which he would be represented by counsel, have the right to call and confront witnesses against him, and have a right to remain silent. A pleading's nature is determined by its substance and not its caption. See State ex rel. Daley v. State, 97-2612 (La. 11/7/97), 703 So.2d 32. Although relator styled his filing as a motion to correct an illegal sentence, the remedy he seeks is in the nature of postconviction relief as provided by La. Code Crim. P. art. 924, et seq. Therefore, relator's claim that he should have been prosecuted under the aggravated battery statute may not be raised in a motion to correct an illegal sentence. See State v. Gedric, 99-1213 (La. App. 1st Cir. 6/3/99), 741 So.2d 849, 852 (per curiam), writ denied, 99-1830 (La. 11/5/99), 751 So.2d 239. This claim also may not be raised in an application for postconviction relief as the delay to seek postconviction relief has expired in this case. See La. Code Crim. P. art. 930.8(A).
JEW
JMM
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COURT OF APPEAL, FIRST CIRCUIT /s/_________
DEPUTY CLERK OF COURT
FOR THE COURT