State v. Marisco , 538 So. 2d 748 ( 1989 )

538 So. 2d 748 (1989)

STATE of Louisiana
v.
Wayne MARISCO.

No. 88-KA-652.

Court of Appeal of Louisiana, Fifth Circuit.

February 15, 1989.

Dorothy A. Pendergast, Asst. Dist. Atty., Research & Appeals, Gretna, for plaintiff/appellee.

Bruce G. Whittaker, Gretna, for defendant/appellant.

Before KLIEBERT, GRISBAUM and GOTHARD, JJ.

GOTHARD, Judge.

Wayne Marisco was convicted by a six-person jury of aggravated battery (with a knife) of James Williamson. He was sentenced to a five year probated sentence conditioned on his serving two years flat-time in the Jefferson Parish prison. From his out-of-time appeal granted on July 18, 1988, defendant appeals to this court, urging only that we check for errors patent on the record.

On October 24, 1987, at about midnight, the defendant stabbed the victim seven times in the face after the victim observed the defendant strike his girlfriend and intervened to help the woman. The victim was taken by ambulance to Charity Hospital, and the defendant was arrested by Gretna city police.

Our examination of the record for patent error pursuant to LSA-C.Cr.P. art. 920 reflects one such error. The trial court ordered the defendant's two years imprisonment to be served "flat-time," i.e., disallowing the accumulation of good time. LSA-R.S. 15:571.3(A) provides that "[t]he sheriff of the parish in which the conviction was had [has the] sole authority to determine when good time has been earned for purposes of diminution of sentence." Accordingly, we shall order that the commitment be amended to delete the flat-time restriction placed on the defendant's sentence by the trial court.

For these reasons, we affirm the defendant's conviction and sentence as amended. The case is remanded to the district court for the purpose of amending the commitment to remove the flat-time restriction it placed on the defendant's sentence.

AFFIRMED AND REMANDED WITH ORDER