Opinion
No. 85-KA-62.
June 3, 1985.
APPEAL FROM TWENTY-FOURTH JUDICIAL DISTRICT COURT, PARISH OF JEFFERSON, STATE OF LOUISIANA, HONORABLE WALLACE C. LEBRUN, J.
Dorothy A. Pendergast, Asst. Dist. Atty., Research and Appeals, Gretna, for the State.
Robert J. Oberfell, New Orleans, for defendant-appellant.
Before BOUTALL, BOWES and CURRAULT, JJ.
On April 2, 1984, the defendant, Glen D. Hansan, was charged by a bill of information with violating R.S. 40:966(D) — possession of marijuana. Appellant entered a plea of guilty on September 10, 1984, and a pre-sentence investigation report (P.S.I.) was ordered. Subsequently, on November 28, 1984, after receiving and considering the P.S.I. report, the court sentenced Hansan to six months in parish prison and a five hundred dollar fine, the maximum sentence for the offense.
From that sentence, defendant appeals, arguing two assignments of error:
1. Did the trial court improperly consider a prior marijuana charge in Orleans Parish in which the defendant was discharged and the case against him dismissed pursuant to R.S. 40:983?
2. Did the trial court properly consider Louisiana Code of Criminal Procedure, Article 894.1, and was the sentence imposed excessive pursuant to Louisiana Constitution, Article 1, Section 20?
Initially, we note that the offense charged, and to which defendant pled guilty, is a misdemeanor. Thus, the defendant was not entitled to a jury trial or to an appeal. See LSA-Const. 1974, art. 1, sec. 17, and art. V, sec. 10(A). His proper avenue of review was by writ application. La.C.Cr.P. 912.1(C); Rule 4, Uniform Rules-Courts of Appeal. However, in keeping with this court's policy of fostering judicial economy, we have decided to consider the matter.
We find both of appellant's assignments of error without merit. Although a former plea under R.S. 40:983 cannot be used to enhance a penalty or to deny the defendant any civil liberties, we consider that it can properly be considered as an arrest without a conviction. Thus the record shows drug-related arrests for possession of marijuana in 1981, possession of marijuana and hashish in 1982, and the present offense. Those arrests, along with Hansan's admitted illegal drug usage in his P.S.I. report, adequately support the trial judge's imposition of the maximum sentence for this offense.
Accordingly, we affirm the conviction and sentence of the defendant.
AFFIRMED.