State v. Green

State v. Green, 391 So. 2d 833 (La. 1980)

Court: Supreme Court of Louisiana · State Highest Courts
Decided: November 19, 1980
Docket: No. 67703
Judges: Per Curiam
Citations: 391 So. 2d 833

Cited by 13

Opinion — Per Curiam

391 So.2d 833 (1980)

STATE of Louisiana

Robert Neal GREEN.

No. 67703.

Supreme Court of Louisiana.

November 19, 1980. Rehearing Denied January 9, 1981.

*834 William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Leonard K. Knapp, Jr., Dist. Atty., George Perez, Abbott J. Reeves, Asst. Dist. Atty., for plaintiff-appellee.

Scotty G. Rozas, J. Wade Smith, Lake Charles, for defendant-appellant.

PER CURIAM.

Defendant Robert Neal Green was charged by bill of information with aggravated burglary, La.R.S. 14:60, and attempted aggravated rape, La.R.S. 14:27 (14:42). The two counts were jointly tried to a twelve person jury, which on December 4, 1979, found defendant guilty as charged. Thereafter, the trial court sentenced him to serve thirty-five years at hard labor without benefit of parole for the attempted rape and ten years at hard labor for the burglary, to be served concurrently. On appeal he relies upon three assignments of error for reversal of his conviction and sentence.

Defendant correctly argues that the denial of parole eligibility on his sentence for attempted aggravated rape was unlawful. The completed offense would have been punishable by life imprisonment without benefit of parole, probation or suspension of sentence. La.R.S. 14:42, as amended by acts 1978, No. 239, § 1. However, the penalty for attempt was prescribed by La.R.S. 14:27(D)(1), as follows:

"If the offense so attempted is punishable by death or life imprisonment, [one convicted of attempt] shall be imprisoned at hard labor for not more than fifty years."

Because the statute does not prescribe ineligibility for parole, probation or suspension of sentence, the trial court could not lawfully so qualify defendant's sentence. See, State v. Welch, 368 So.2d 965 (La.1979) (on application for rehearing). Accordingly, the sentence must be set aside.

We have reviewed defendant's remaining assignments of error and found them to be without merit.

Defendant's convictions and sentence for aggravated burglary are affirmed, but the sentence for attempted aggravated rape is set aside and the case is remanded for resentencing in accordance with law.

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No later court has written an explanatory parenthetical about this case yet.

Cited by 13 cases

View all citing references →

Relies on it most ⓘ

State v. Napoli428 So. 2d 957 (La. Ct. App. 1983)
State ex rel. Sullivan v. Maggio432 So. 2d 854 (La. 1983)
State v. McCue484 So. 2d 889 (La. Ct. App. 1986)
State v. Palmer447 So. 2d 1159 (La. Ct. App. 1984)
State v. Benedict607 So. 2d 817 (La. Ct. App. 1992)
State v. Everett432 So. 2d 250 (La. 1983)

Most recent

State v. Ruiz986 So. 2d 255 (La. Ct. App. 2008)
State v. Benedict607 So. 2d 817 (La. Ct. App. 1992)
State v. Powell566 So. 2d 90 (La. Ct. App. 1990)
State v. Gilliam503 So. 2d 585 (La. Ct. App. 1987)
State v. Jason488 So. 2d 1264 (La. Ct. App. 1986)
State v. McCue484 So. 2d 889 (La. Ct. App. 1986)

Citing references are not a citator: they show that a later opinion cites this case, not whether it followed, distinguished, or overruled it. Check negative history before relying on this case.

Authorities cited 2

Depth	Case	Cited by
	State v. Welch, 368 So. 2d 965 (La. 1979)	16
	State v. Bell, 391 So. 2d 833 (La. 1980)	1

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