Opinion
No. 81-KA-1389.
February 3, 1982. Rehearing Denied March 19, 1982.
APPEAL FROM FIRST JUDICIAL DISTRICT COURT, PARISH OF CADDO, STATE OF LOUISIANA, HONORABLE JAMES E. CLARK, J.
William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Paul Carmouche, Dist. Atty., R. Cody Mayo, Jr., Asst. Dist. Atty., for plaintiff-appellee.
Howard M. Fish, Asst. Indigent Defender, Shreveport, for defendant-appellant.
Defendant was charged by bill of information with simple burglary in violation of La.R.S. 14:62. After trial by jury on February 3, 1981, he was found guilty as charged. Thereafter, the trial court sentenced him to twelve (12) years' imprisonment at hard labor. Defendant has now appealed his conviction and sentence to this Court relying on four assignments of error filed below.
We have reviewed defendant's assignments as they relate to the jury's verdict and find them without merit. Defendant's conviction is therefore affirmed. We have also considered defendant's claim that the sentence imposed by the trial court is excessive and find that it lacks merit as well. Nevertheless, we note that defendant is on probation for a prior misdemeanor conviction and that the trial court in this case has stipulated that defendant's present sentence is to run consecutively with any other sentence he may receive. In the event of revocation on that prior offense, however, only the court originally granting the suspension of sentence and probation may determine whether defendant will serve the sentences concurrently or consecutively, La.C.Cr.P. art. 901(2); State ex rel. Brantly v. Dees, 388 So.2d 386 (La. 1980).
Accordingly, while we affirm defendant's conviction, we vacate the sentence imposed and remand this case to the trial court for resentencing in accord with the views expressed herein.