State v. Serpas , 798 So. 2d 1178 ( 2001 )

798 So.2d 1178 (2001)

STATE of Louisiana
v.
Sherry SERPAS.

No. 2001-K-1477.

Court of Appeal of Louisiana, Fourth Circuit.

October 3, 2001.

Harry F. Connick, District Attorney, Paige Cline, Assistant District Attorney, Brandi Hilden, Assistant District Attorney, Aimee Peralta, Law Clerk, New Orleans, LA, Counsel for Relator.

(Court composed of Judge STEVEN R. PLOTKIN, Judge MICHAEL E. KIRBY, and Judge MAX N. TOBIAS, Jr.)

Judge MAX N. TOBIAS, JR.

The defendant, Sherry Serpas, was charged with violating La. R.S. 40:966(A), possession of heroin, on 31 May 2001, which provided for a sentence of "imprisonment at hard labor for not less than four years nor more than ten years without benefit of probation or suspension of sentence." La. R.S. 40:966(C)(1). After commission of the crime, but before the sentencing, the Legislature amended this statute to delete the language "without benefit of probation or suspension of sentence." See Acts 2001, No. 403. Section 6 of the Act specifically provides that its provisions "shall only have prospective effect." The act became effective on 15 June 2001.

At the defendant's sentencing on 27 July 2001, the trial court sentenced her to ten years at hard labor, but suspended the sentence with three years of active probation. The State filed the instant writ claiming that the sentence issued by the trial court is illegal. We agree.

It is well settled that the penalty set out in a statute at the time of offense applies. State v. Ragas, 98-0011 (La.App. 4 Cir. 7/28/99), 744 So.2d 99. The fact that a statute is subsequently amended to lessen the possible penalty does not extinguish liability for the offense committed under the former statute. State v. Narcisse, 426 So.2d 118 (La.1983).

We have reviewed the sentencing transcript and have found no reasons stated by the trial court for a downward departure of the mandatory minimum sentence provided by the statute. Therefore, the sentence is illegal and must be vacated. The matter is remanded to the trial court for resentencing.

WRIT GRANTED; SENTENCE VACATED; REMANDED.