Opinion
NO. 2014 KW 1551
11-20-2014
STATE OF LOUISIANA v. JEROME POLK
In Re: Jerome Polk, applying for supervisory writs, 22nd Judicial District Court, Parish of St. Tammany, No. 373537. BEFORE: GUIDRY, THERIOT AND DRAKE, JJ.
WRIT GRANTED IN PART WITH ORDER AND DENIED IN PART. There is a discrepancy between the minutes and the sentencing transcript as the transcript reflects the district court did not restrict parole eligibility when it imposed relator's sentence in this matter. It is well settled that where there is a discrepancy between a minute entry and the transcript, the transcript prevails. See State v. Lynch, 441 So.2d 732, 734 (La. 1983). Accordingly, the district court is INSTRUCTED to amend the criminal minute entry and the commitment order to delete the prohibition on parole eligibility on relator's habitual offender sentence, and the district court is ORDERED to forward the amended minute entry and commitment order to the Department of Corrections Legal Department and the officer in charge of the institution at which relator is housed. See La. Code Crim. P. art. 892(B)(2); State ex rel. Roland v. State, 2006-0244 (La. 9/15/06), 937 So.2d 846 (per curiam).
Although the "at hard labor" language was added to La. R.S. 15:529.1(G) by 2010 La. Acts No. 69, § 1, the addition of that condition to the habitual offender law did not modify the sentencing provisions of any underlying felony offense. The sentence conditions required by La. R.S. 15:529.1(G) are additions to, rather than replacements of, those conditions required by the sentencing provisions for the underlying offense. A sentence enhanced under the habitual offender statute is computed by referring to the underlying offense. See State v. Douglas, 2010-2039 (La. App. 1st Cir. 7/26/11), 72 So.3d 392, 398, writs denied, 2011-2307 (La. 5/25/12), 90 So.3d 406 & 2012-2508 (La. 5/3/13), 115 So.3d 474. Because relator's underlying felony conviction for distribution of hydrocodone allowed for a sentence at hard labor, that condition was a legal component of relator's sentence as a habitual offender. See La. R.S. 40:967(B)(1). The transcript further reflects there was no original sentence to vacate because the court did not impose a sentence prior to the habitual offender proceedings. Accordingly, the trial court did not err in denying relator's motion to correct an illegal habitual offender sentence.
MRT
EGD
JMG
COURT OF APPEAL, FIRST CIRCUIT /s/_________
DEPUTY CLERK OF COURT
FOR THE COURT