Opinion
No. 82-KA-1125.
June 3, 1983.
APPEAL FROM CRIMINAL DISTRICT COURT, PARISH OF ORLEANS, STATE OF LOUISIANA, HONORABLE RUDOLPH F. BECKER, III, J.
William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Connick, Dist. Atty., John Craft, Asst. Dist. Atty., Kendall Green, Asst. Dist. Atty., for plaintiff-appellee.
Chris Christofferson, Dwight Doskey, New Orleans, Orleans Indigent Defender Program, for defendant-appellant.
Defendant was charged by bill of information with attempted armed robbery in violation of La.R.S. 14:27; 14:64. On May 13, 1981, he entered a plea of guilty to the reduced charge of attempted simple robbery, La.R.S. 14:27; 14:65. Thereafter, the state filed an information against him under the multiple offender provisions of La.R.S. 15:529.1 on the basis of his prior plea of guilty to robbery in Alabama. After a hearing conducted on the multiple bill, March 15, 1982, the trial court found that defendant was a second offender and sentenced him to five (5) years' imprisonment at hard labor. Defendant has now appealed his conviction and sentence to this Court urging a single assignment of error.
Defendant's conviction is affirmed. However, we find that he has presented sufficient proof that a transcript of his 1976 guilty plea to robbery is missing from the records of the Circuit Court for Mobile County, Alabama, and is unavailable through no fault of his own. He was therefore entitled to have the trial court consider at the multiple offender hearing other evidence of a substantial Boykin defect in that plea colloquy, including his own testimony. State v. Smith, 415 So.2d 930 (La. 1982) (on rehearing). Accordingly, we set aside defendant's adjudication as a second offender, vacate his sentence to five years at hard labor, and remand this case to the trial court for resentencing in accord with law.
CONVICTION AFFIRMED; SECOND OFFENDER ADJUDICATION REVERSED; CASE REMANDED FOR RESENTENCING.
MARCUS and BLANCHE, JJ., dissent for reasons on original hearing in State v. Smith, 415 So.2d 930 (La. 1982).