State v. Diggs , 423 So. 2d 643 ( 1982 )

423 So. 2d 643 (1982)

STATE of Louisiana
v.
William DIGGS, Jr.

No. 82-KA-0525.

Supreme Court of Louisiana.

October 20, 1982.

William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John M. Mamoulides, Dist. Atty., Ronald Loumiet, William C. Credo, Asst. Dist. Attys., for plaintiff-appellee.

Martha E. Sassone, Indigent Defender Bd., Gretna, for defendant-appellant.

PER CURIAM.

Defendant William Diggs was charged by bill of indictment with attempted aggravated rape, in violation of La.R.S. 14:27 and 14:42. Tried before a twelve-member jury on December 1-2, 1980, defendant was convicted and subsequently sentenced to forty years' imprisonment at hard labor. The defendant now appeals his conviction and sentence to this Court, relying on the lone assignment of error filed below.

We have reviewed defendant's argument concerning alleged trial error and find it to lack substance; for this reason, defendant's conviction is affirmed. We note, however, an error in the trial court's imposition of a prison term without parole eligibility and, accordingly, vacate the defendant's sentence. La.C.Cr.P. Art. 920(2). As prescribed by La.R.S. 14:27(D)(1), the penalty for attempted aggravated rape is punishment at hard labor for not more than fifty years. See, La.R.S. 14:42. Because the statute does not prescribe ineligibility for parole, probation or suspension of sentence, the trial court could not lawfully so qualify defendant's sentence. See, State v. Welch, 368 So. 2d 965 (La.1979).

CONVICTION AFFIRMED; SENTENCE VACATED AND CASE REMANDED.