Opinion
No. 84-KA-0406.
January 14, 1985.
APPEAL FROM CRIMINAL DISTRICT COURT, PARISH OF ORLEANS, STATE OF LOUISIANA, HONORABLE ISRAEL M. AUGUSTINE, JR., J.
William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Connick, Dist. Atty., William Campbell, Asst. Dist. Atty., for plaintiff-appellee.
Dwight Doskey, Orleans Indigent Defender Program, for defendant-appellant.
Defendant's conviction for possession of pentazocine in violation of La.R.S. 40:969 is affirmed. His sentence of 20 years at hard labor, imposed after the trial court adjudicated him a third offender, La.R.S. 15:529.1, is, however, vacated and this case is remanded for resentencing. At the time of the offense in 1980, pentazocine occupied Schedule IV in La.R.S. 40:964, as amended by Acts 1979, No. 659, and carried a maximum penalty of 5 years at hard labor for a first offender, or 10 years at hard labor for a second or third offender sentenced under La.R.S. 15:529.1. Defendant's multiple offender sentence is therefore illegal and subject to correction at any time. La.C.Cr.P. art. 882; State v. Thomas, 447 So.2d 1053 (La. 1984); State v. Wiggins, 432 So.2d 234 (La. 1983).
CONVICTION AFFIRMED; SENTENCE VACATED AND CASE REMANDED FOR RESENTENCING.