State v. Willis , 663 So. 2d 392 ( 1995 )

663 So. 2d 392 (1995)

STATE of Louisiana
v.
Antonio Fernandez WILLIS.

No. Cr 95-316.

Court of Appeal of Louisiana, Third Circuit.

October 4, 1995.

Richard Phillip Ieyoub, Baton Rouge, Morgan J. Goudeau III, Opelousas, Donald J. Richard, Asst. Dist. Atty., for State.

Herschel Glenn Marcantel Jr., Mamou, for Antonio Fernandez Willis.

Before COOKS, WOODARD and AMY, JJ.

COOKS, Judge.

Defendant, Antonio Willis, was charged by bill of information with possession with intent to distribute a controlled dangerous substance (schedule II—cocaine) in violation of La.R.S. 40:967(A)(1). Willis was found guilty as charged by a jury. He was sentenced to serve five years at hard labor, six months of which was suspended. On appeal, Willis contends his sentence is excessive. However, we note an error patent in the sentencing.

Louisiana Code of Criminal Procedure Article 893 allows a trial judge to suspend imposition or execution of a sentence after a first or second conviction for a noncapital felony, but defendant must be placed on probation. The record shows Willis was not placed on probation as required by Louisiana Code of Criminal Procedure Article 893. The mandatory probation requirement of this provision compels that we must vacate Willis' sentence and remand the case for resentencing pursuant to Louisiana Code of Criminal Procedure Article 893. See State v. Fann, 597 So. 2d 1230 (La.App. 3 Cir.1992).

SENTENCE VACATED AND CASE REMANDED.