Opinion
NO. 2020 KW 0118
05-12-2020
STATE OF LOUISIANA v. MICHAEL BENBOW
In Re: Michael Benbow, applying for supervisory writs, 22nd Judicial District Court, Parish of St. Tammany, No. 503077 BEFORE: McDONALD, THERIOT, AND CHUTZ, JJ.
WRIT GRANTED. The district court's ruling denying relator's motion to correct an illegal sentence is reversed. For a violation 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)(b); 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 or 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 those called for in the reference statute." State v. Esteen, 2001-879 (La. App. 5th Cir. 5/15/02), 821 So.2d 50, 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 one 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.
JMM
MRT
WRC
COURT OF APPEAL, FIRST CIRCUIT /s/_________
DEPUTY CLERK OF COURT
FOR THE COURT