Boudreaux, Bernard E., Jr.

English

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Louisiana Law ReviewVolume 21 | Number 4June 1961Criminal Procedure - Pleas of Guilty NotResponsive to Bill of Information - Right of State toCorrect ProceedingsBernard E. Boudreaux Jr.This Note is brought to you for free and open access by the Law Reviews and Journals at LSU Law Digital Commons. It has been accepted for inclusionin Louisiana Law Review by an authorized editor of LSU Law Digital Commons. For more information, please contact kreed25@lsu.edu.Repository CitationBernard E. Boudreaux Jr., Criminal Procedure - Pleas of Guilty Not Responsive to Bill of Information - Right of State to Correct Proceedings,21 La. L. Rev. (1961)Available at: https://digitalcommons.law.lsu.edu/lalrev/vol21/iss4/13LOUISIANA LAW REVIEWCRIMINAL PROCEDURE - PLEA OF GUILTY NOT RESPONSIVE TOBILL OF INFORMATION - RIGHT OF STATE TOCORRECT PROCEEDINGSTwo bills of information charged the defendant with posses-sion and sale of narcotics. The defendant, pursuant to an agree-ment with the state, pleaded guilty to addiction, and sentencewas imposed. Subsequently, it was discovered that the defend-ant had not been charged with the offense of addiction as nonew bills of information charging addiction had been filed.Three months after the plea of guilty was accepted, the statefiled a 'pleading styled "Motion to Set Aside and Vacate Judg-ment and Sentence," contending that the court lacked jurisdic-tion to accept the plea of addiction since it was not responsiveto the charge, and that the judgments and sentences should beannulled and set aside. The trial court ruled in favor of thestate. On certiorari to the Louisiana Supreme Court, held, re-versed. A plea of guilty when accepted and entered upon therecord is a conviction, and the district court was without au-thority to vacate the judgments and sentences. State v. Braud,238 La. 811, 116 So.2d 676 (1959).The Louisiana Code of Criminal Procedure has no singlearticle which adequately covers a situation where a defendantpleads guilty to an offense with which he is not charged. Article2631 states that the plea of guilty admits guilt only in the man-ner and form charged in the indictment.2 It is generally ad-mitted that the plea of guilty is equivalent to a conviction, 3 andthat a conviction is synonymous with a verdict of guilty.4 Article405 states that a verdict of guilty must be responsive to theindictment and that no one can be found guilty of an offensenot charged in the indictment, or not necessarily included in theoffense charged. The crime of addiction is not responsive to,nor included in, the charge of sale and possession of narcotics.,Therefore, the statutes seem to indicate that judgments such asthose in the instant case should be declared invalid.1. LA. R.S. 15:263 (1950).2. Although the instant case concerns two bills of information, id. 15:216 pro-vides that the rules contained in the Code of Criminal Procedure apply as muchto informations as to indictments, unless it is clear that reference is only to afinding of the grand jury.3. Stokes v. State, 122 Ark. 56, 182 S.W. 521 (1916) ; Cummings v. Perry,194 Ga. 424, 21 S.E.2d 847 (1942) ; 22 C.J.S., Criminal Law § 424 (1940).4. Schireson v. State Board of Medical Examiners, 130 N.J.L. 570, 33 A.2d911 (1943) ; Martin v. State, 30 Okla. Crim. 49, 234 Pac. 795 (1925).818 [Vol. XXI1961]A valid sentence, as provided by Article 522, must rest upona valid verdict, indictment, and statute, and everything essentialto punishment must be found by the verdict and alleged in theindictment. Article 527 provides that when sentence is illegal,review by defendant or state may be had by appeal in an appeal-able case, or by certiorari and prohibition in an unappealablecase. In view of the intent of these two articles it seems that thesentences imposed in the instant case should have been set aside.The court has been consistent in striking down convictionsand sentences which are not responsive to the indictments. How-ever, the language employed in each case has varied. For ex-ample, in State v. Roberts,6 the court said, "it is vital to thevalidity of any verdict for a lesser offensethat all the elementsof that offense are necessarily contained in the definition ofthe greater." And in State v. Calvo,7 in a discussion of the pos-sibility of an unresponsive verdict, the court stated, "such averdict would not only be invalid but would have been declareda nullity by the court receiving it." 8  (Emphasis added.) Theeffect of a plea of guilty is defined as "a record admission ofwhatever is well charged in the indictment or information."9 Inother jurisdictions the courts, in uniformly requiring respon-siveness, have used such language as, the "verdict is funda-mentally defective,"'10 and, "a person cannot be convicted of anoffense . . . not charged against him by indictment.""In the instant case, the court stated that the plea of guiltywhen accepted and entered on the records is a conviction of thehighest order. From this major premise the court reasoned thatthe state's plea to set aside and vacate judgments and sentenceswas in effect either a motion for a new trial, or a motion inarrest of judgment. Since Article 506 specifies that the state5. State v. Robinson, 221 La. 19, 58 So.2d 408 (1952).6. 213 La. 559, 567, 35 So.2d 216, 218 (1948), quoted in State v. Clayton, 236La. 1093, 1104, 110 So.2d 111, 115 (1959).7. 240 La. 75, 121 So.2d 244 (1960). Although this case was decided afterthe instant case, it indicates the consistent attitude of the court toward unre-sponsive verdicts.8. 121 So.2d 244, 250 (La. 1960). In State v. Gendusa, 190 La. 422, 430, 182So. 559, 561 (1938), the court stated: "The verdict . . . is not responsive to theindictment, and is therefore of no effect. The verdict being invalid, the sentenceimposed thereunder is also invalid."9. 22 C.J.S., Criminal Law § 424 (1940).10. Wright v. State, 330 S.W.2d 618, 619 (Tex. Crim. App. 1960).11. People v. Travis, 171 Cal. App.2d 842, 844, 341 P.2d 851, 852 (1959). InState v. La Rue, 67 N.M. 149, 151, 353 P.2d 367, 368 (1960), the court stated:"The rule that a person cannot be convicted of an offense of which he is notcharged is so well settled that citation of authority is deemed unnecessary."NOTESLOUISIANA LAW REVIEWcannot be granted a new trial, and Article 519 prohibits a mo-tion in arrest of judgment after sentence has been imposed,the Supreme Court concluded that the district court was withoutauthority to entertain the state's motion which was made aftersentence had been imposed. In a concurring opinion by ChiefJustice Fournet it was stated that, since it had been held thatthe verdict of addiction is not responsive to the charge of pos-session and sale, the sentences were illegal. Citing Article 527,it was declared that the state's remedy to complain of such illegalsentences was by appeal, and the time allowed for an appealhaving expired, the state was without right to proceed via amotion to vacate the sentences. In upholding the convictions, theopinion of the Chief Justice adopted the reasoning set forth bythe main opinion of the case. In the concurring opinion ofJustice Hawthorne it was stated, "As a matter of law, I thinkthe trial judge was correct in sustaining the motion. As a mat-ter of equity, however, I do not believe the suspended sentencesin these cases should be annulled and set aside."'1 2 The legalbasis of this opinion was not given, but the "equity" referred towas the fact that there had been an agreement between the stateand defendant, and that the state was urging its own error inseeking abrogation of that agreement. 13In view of the fact that the tenor of the Code of CriminalProcedure indicates that the judgments and sentences in the in-stant case should be declared null, and the attitude of the courttoward cases involving similar problems, and dispositions bycourts of other jurisdictions, it is submitted that a sufficientbasis in law existed for the result reached by the trial court. Theultimate result of the holding of the Supreme Court is that thestate's remedy was lost due to the lapse of procedural delays ap-plicable to a device (appeal) not employed per se by the statebut made applicable to the state's motion by an analogy by thecourt. This analysis was answered in the dissenting opinions.12. State v. Brand, 238 La. 811, 822, 116 So.2d 676, 680 (1959).13. The penalty for a conviction of possession and sale of narcotics is consid-erably more severe than is the penalty for conviction of being an addict. The pen-alty for the former offense in one situation provides for the death penalty, andexpressly prohibits parole, probation, or suspension of sentence in all other situa-tions, whereas in the latter, the sentence in one situation provides for the possi-bility of a suspended sentence, which was in fact what occurred in the instantcase. In the concurring opinion of Justice Hawthorne reference was expresslymade to this vast difference in punishment, and it was pointed out that shouldthe judgments and sentences be set aside, the defendant could be compelled tostand trial for the offense with the more severe punishment. Perhaps this factbore considerable weight toward the result reached in the instant case. See LA.R.S. 40:981 (1950), as amended by La. Acts 1956, No. 84, § 1.[Vol. XXIJustice McCaleb took the position that the judgments and sen-tences were null and stated that the majority should not haveequated the state's motion with the motion for new trial or themotion in arrest of judgment, as the purpose of the state's mo-tion was to have the null judgments set aside. If an unresponsiveverdict is treated as a nullity, then the lapse of procedural delaysshould not cause such nullities to achieve validity. This latterposition was taken in the dissenting opinion of Justice Hamlin.Finally, four of the Justices felt that at least the sentences wereinvalid.'4 Article 527 would appear to indicate that no invalidsentence should be allowed to stand. In view of the result of thecase, perhaps the fact that there was an agreement between thestate and the defendant, and, by virtue of its own error, the statesought abrogation was of greater significance and consequencethan is indicated by the single reference to these facts made ina concurring opinion.' 5Bernard E. Boudreaux, Jr.ELECTIONS - SECRECY OF THE BALLOTPlaintiff alleged that secrecy of the ballot was violated at twoprecincts having 895 of the 20,061 legal votes cast during the1960 Democratic Primary Election for the office of Judge of theTwenty-first Judicial District. If the vote in these two contestedprecincts were set aside, petitioner would have had a majorityof one vote. In both precincts the voting machines were locatedin buildings near stairways leading to the second floors. Thebooths were constructed with open tops permitting someone onthe stairway to see into the booth, but the testimony was some-what contradictory concerning the extent the interior could beseen. At both precincts persons were seen on the stairway atvarious times during the election. Plaintiff sought to have spe-14. Chief Justice Fournet stated that the sentences were invalid but that thestate's remedy had prescribed. Justice Hawthorne stated that as a matter of lawthe sentences should be set aside, but held otherwise as a matter of equity. JusticesMcCaleb and Hamlin dissented as to the result of the case.15. See in Work of the Louisiana Supreme Court for the 1959-1960 Term -Criminal Law and Procedure, 21 LOUISIANA LAW REVIEW 366, 375 (1961), a dis-cussion of the possibility of the state being estopped from alleging invalidity ofjudgments and sentences because of its own error. On the matter of the bindingeffect of agreements between prosecuting attorneys and defendants, see State v.Lopez, 19 Mo. 254 (1853) ; State v. Ward, 112 W.Va. 552, 165 S.E. 803 (1932) ;Annot., 85 A.L.R. 1177 (1932); 1 WHARTON, CaIMINAL LAW AND PaoCEnURE§ 140 (1957) ; 5 id. § 2210.1961] NOTES

Criminal Procedure - Pleas of Guilty Not Responsive to Bill of Information - Right of State to Correct Proceedings

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Criminal Procedure - Pleas of Guilty Not Responsive to Bill of Information - Right of State to Correct Proceedings

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