State v. Bass

222 So. 2d 865 (1969) 254 La. 83

STATE of Louisiana
v.
Lawrence Ratcliff BASS.

No. 49522.

Supreme Court of Louisiana.

May 5, 1969.

Ford E. Stinson, Benton, for appellant.

Jack P. F. Gremillion, Atty. Gen., William P. Schuler, Asst. Atty. Gen., Billy R. Robinson, City Atty., for appellee.

SANDERS, Justice.

Lawrence Ratcliff Bass is charged with driving a vehicle while under the influence of intoxicating beverages on June 2, 1968, in violation of LSA-R.S. 14:98.^[1] The affidavit in the City Court of Bossier City contained the notation "Second Offense." After trial, he was convicted and sentenced, as a second offender, to nine months imprisonment in the parish jail. He has appealed.

The defendant reserved no bills of exceptions in the trial court. Hence, our review is limited to "error that is discoverable by a mere inspection of the pleadings and proceedings." LSA-C.Cr.P. Art. 920; State v. Welch, 252 La. 679, 212 So. 2d 426; State v. Watson, 252 La. 649, 212 So. 2d 415; State v. Smith, 250 La. 647, 198 So. 2d 114.

We have reviewed the record for such errors. The State properly concedes that the notation "Second Offense" in the affidavit is insufficient to charge a prior conviction.

Article 483, LSA-C.Cr.P. provides:

"If it is necessary to allege a prior conviction in an indictment, it is sufficient to allege the name or nature of the offense and the fact, date, and court of the conviction. * * *"

The affidavit fails to legally charge defendant as a second offender. State v. Montgomery, 250 La. 326, 195 So. 2d 285. The sentence imposed exceeds that for a first offense. LSA-R.S. 14:98.^[2] Hence, the sentence is illegal and must be set aside. The case will be remanded for a proper sentence for a first conviction. State v. Montgomery, supra.

For the reasons assigned, the sentence is annulled and set aside and the case is remanded to the City Court of Bossier City for a sentence according to law and the views herein expressed.

NOTES

[1] LSA-R.S. 14:98 was amended by Acts 279 and 647 of 1968. Since defendant was tried and sentenced on June 24, 1968, prior to the effective date of these amendments, we have considered only the original statutory text.

[2] At the time of trial and sentence, LSA-R.S. 14:98 authorized a maximum imprisonment of eight months for a first offense.