Court: Louisiana Court of Appeal; November 4, 1986; Louisiana; State Appellate Court
On July 2, 1984, Paul F. Bienvenue, Jr. was charged with attempted second degree murder under La.R.S. 14:27 and R.S. 14:30.1. He was tried on January 16, 1986, and found guilty of aggravated battery (La.R.S. 14:34). Sentencing, delayed for a pre-sentence investigation, occurred on February 10, 1986, resulting in a five-year hard labor sentence without the possibility of probation, parole, or suspension of sentence. The court noted that a firearm was used in the crime, applying La.C.Cr. P. art. 893.1. Bienvenue did not contest his conviction but appealed the sentence, raising three assignments of error related to sentencing. Specifically, he contended that La.C.Cr. P. art. 893.1 was misapplied, arguing it should not apply to defendants ineligible for a suspended sentence and that the district attorney failed to provide proper notice for the sentence enhancement. The incident involved a confrontation between the defendant and two victims, Batiste and St. Julien, after a verbal altercation at a motel, culminating in a shooting where St. Julien was seriously injured. Both Bienvenue and his associate Carpenter were subsequently arrested and charged.
Defendant, having two prior felony convictions, is automatically barred from sentence suspension under La.C.Cr. P. art. 893. Recent jurisprudence acknowledges that the enhancement penalties in La.C.Cr. P. art. 893.1 do not apply in this case. Suspension of sentence is only allowed for first felony convictions, making it unavailable for second offenses. Article 893.1 is specifically designed for felonies where suspension of sentence is not prohibited, indicating the trial court erred by sentencing under its enhancement provisions. Consequently, the case is reversed and remanded for resentencing, rendering unnecessary the consideration of the defendant's arguments regarding lack of notice and excessive sentencing. The trial court did not need to state the factors considered in sentencing, as the matter will be revisited during resentencing.
