State v. Brown

ARMSTRONG, Judge.

Terry H. Brown was charged by bill of information on September 23, 1980, with attempted armed robbery, a violation of LSA-R.S. 14:27 and 14:64. At his arraignment on September 26, 1980, he pleaded not guilty. The trial court found probable cause and denied the Motions to Suppress the Identification and the Evidence on December 15, 1980. A twelve-member jury found him guilty as charged after a two-day trial on July 9 and 10, 1981. He was sentenced on July 29, 1981, to serve twenty-five years without benefit of parole, probation, or suspension of sentence as a second offender under R.S. 15:529.1. He appealed and his conviction and sentence were affirmed. State v. Smith and Brown, 419 So.2d 468 (La.1982). However, the sentence was vacated on October 11, 1985, by the United States District Court on the grounds that the appellant had not been advised of his right to have the State prove his identity as a multiple offender. After a second multiple bill hearing on November 25, 1985, the appellant was resentenced to twenty-five years at hard labor at a hearing on December 16, 1985. In an unpublished opinion this Court affirmed his sentence and conviction. State v. Brown, 497 So.2d 795 (La.App. 4th Cir.1986).

Terry H. Brown applied for post conviction relief on the resentencing and was granted an out-of-time appeal as to his resentencing only. In the only assignment of error, defense counsel notes that at the resentencing the trial court did not impose his sentence without benefit of parole, probation, or suspension of sentence as the statute requires, and thus, his sentence is illegally lenient. She also asks that this error not be corrected. In its brief, the State concurs and acknowledges that the error cannot be corrected on appeal because the State did not raise the issue. State v. Scott, 593 So.2d 704, 707-8 (La.App. 4th Cir.1991); State v. Smith, 587 So.2d 62, 64 (La.App. 4th Cir.1991).

Accordingly, the appellant’s sentence is affirmed.

SENTENCE AFFIRMED.