State v. Cushenberry

BYRNES, Judge.

Defendant appeals the trial court’s assessing of court costs, and if unable to pay the costs, he spend an additional thirty days in jail. We affirm in part and vacate in part.

At trial, the victim Ms. Larks, testified that she was on her way to work on November 22, 1989, when two young men walking toward her said “good morning” as they were passing, then suddenly turned to her, pulled out a gun and demanded her jewelry and purse. She gave them a watch, chain, rings, and her purse. They put the items in a white bag. One of the men hit her in the back with a gun as they were leaving. New Orleans Police Officer Picard testified that he answered a call at 8:00 a.m. on November 22, from the victim of an armed robbery at 1809 Philip Street and wrote a police report.

Ms. Larks, who works in Juvenile Court, was at her job on November 28, 1989, six days later when she saw one of her assailants in the hall. She identified him to New Orleans Police Officer Carter who testified that he then arrested the defendant.

The defendant Cushenberry was charged by bill of information on December 14, 1989, with violating LA.R.S. 14:64, armed robbery. He was arraigned and pled not guilty on January 5, 1990. At his trial on March 22, 1990, a twelve member jury found him guilty as charged. He was sentenced May 25, 1990, to five years at hard labor without benefit of parole, probation or suspension of sentence and also to pay court costs of $159.00 dollars or to serve an additional thirty (30) days in jail.

In the defendant’s sole assignment of error, he argues that he was illegally sentenced to pay costs or serve additional jail time. During the course of his court proceedings defendant Cushenberry was represented by the Orleans Indigent Defender Program indicating that he is indigent. State v. Huffman, 480 So.2d 396 (La.App. 4th Cir.1985). The defendant cannot be required to serve additional jail time in lieu of paying court costs after a showing of indigency. State v. Moncriffe, 522 So.2d 1187 (La.App. 4th Cir.1988).

Therefore the defendant’s sentence is amended to delete only the portion requiring “additional jail time in lieu” of paying the $159.00 dollars in court costs. In all other respects, the sentence is to remain the same.

AFFIRMED IN PART, VACATED IN PART.