HLS 20RS-776 ORIGINAL
2020 Regular Session
HOUSE BILL NO. 364
BY REPRESENTATIVE GAINES
CRIMINAL/SENTENCING: Provides relative to the sentencing of habitual offenders
1 AN ACT
2To amend and reenact R.S. 15:529.1(A)(introductory paragraph), (1), (2), (3)(introductory
3 paragraph) and (b), and (4), (C), (D)(1)(a), (2), and (3), (E), (J), and (K) and Code
4 of Criminal Procedure Article 893(E)(2), (3)(a), and (4), relative to the habitual
5 offender law; to provide that the habitual offender law shall only be applied to
6 persons whose instant conviction and any prior conviction is for a crime of violence
7 or a sex offense; to provide relative to the application of the habitual offender law
8 to a conviction that is dismissed and set aside after a deferral of imposition of
9 sentence; to provide for definitions; and to provide for related matters.
10Be it enacted by the Legislature of Louisiana:
11 Section 1. R.S. 15:529.1(A)(introductory paragraph), (1), (2), (3)(introductory
12paragraph) and (b), and (4), (C), (D)(1)(a), (2), and (3), (E), (J), and (K) are hereby amended
13and reenacted to read as follows:
14 ยง529.1. Sentences for second and subsequent offenses; certificate of warden or clerk
15 of court in the state of Louisiana as evidence
16 A. Any person who, after having been convicted within this state of a felony
17 offense that is a crime of violence or a sex offense, or who, after having been
18 convicted under the laws of any other state or of the United States, or any foreign
19 government of a crime which, if committed in this state would be a felony offense
20 that is a crime of violence or a sex offense, thereafter commits any subsequent felony
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1 offense that is a crime of violence or a sex offense within this state, upon conviction
2 of said the subsequent felony, shall be punished as follows:
3 (1) If the second felony is such that upon a first conviction the offender
4 offense would be punishable by imprisonment for any term less than his natural life,
5 then the sentence to imprisonment shall be for a determinate term not less than one-
6 third the longest term and not more than twice the longest term prescribed for a first
7 conviction.
8 (2)(a) If the second felony and the prior felony are sex offenses as defined
9 in R.S. 15:541, or the prior felony would be a sex offense as defined in R.S. 15:541,
10 except it occurred prior to June 18, 1992, or the conviction was obtained under the
11 laws of any other state, the United States, or any foreign government, the person
12 shall be sentenced to imprisonment at hard labor for a determinate term not less than
13 two-thirds of the longest possible sentence for the conviction and not more than three
14 times the longest possible sentence prescribed for a first conviction, without benefit
15 of probation, parole, or suspension of sentence.
16 (b) If the second felony and the prior felony are sex offenses as defined in
17 R.S. 15:541, or the prior felony would be a sex offense as defined in R.S.15:541,
18 except it occurred prior to June 18, 1992, or the conviction was obtained under the
19 laws of any other state, the United States, or any foreign government, and the victims
20 of the previous offense and the instant offense were under the age of thirteen years
21 at the time of the commission of the offense or any part thereof, the person shall be
22 imprisoned for the remainder of his natural life, without benefit of parole, probation,
23 or suspension of sentence.
24 (3) If the third felony is such that upon a first conviction, the offender
25 offense would be punishable by imprisonment for any term less than his natural life,
26 then the following sentences apply:
27 * * *
28 (b) If the third felony and either of the two prior felonies are felonies defined
29 as a crime of violence under R.S. 14:2(B), or a sex offense as defined in R.S. 15:541
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1 when the victim is under the age of eighteen at the time of commission of the
2 offense, or any combination of such crimes, the person shall be imprisoned for the
3 remainder of his natural life, without benefit of parole, probation, or suspension of
4 sentence.
5 (4) If the fourth or subsequent felony is such that, upon a first conviction the
6 offender offense would be punishable by imprisonment for any term less than his
7 natural life then the following sentences apply:
8 (a) The person shall be sentenced to imprisonment for the fourth or
9 subsequent felony for a determinate term not less than the longest prescribed for a
10 first conviction but in no event less than twenty years and not more than his natural
11 life.
12 (b) If the fourth felony and no prior felony is defined as a crime of violence
13 under R.S. 14:2(B) or as a sex offense under R.S. 15:541, the person shall be
14 imprisoned for not less than twenty years nor more than twice the longest possible
15 sentence prescribed for a first conviction. If twice the possible sentence prescribed
16 for a first conviction is less than twenty years, the person shall be imprisoned for
17 twenty years.
18 (c) If the fourth felony and two or any of the prior felonies are felonies
19 defined as a crime of violence under R.S. 14:2(B), or a sex offense as defined in R.S.
20 15:541 when the victim is under the age of eighteen at the time of commission of the
21 offense, the person shall be imprisoned for the remainder of his natural life, without
22 benefit of parole, probation, or suspension of sentence.
23 * * *
24 C.(1) Except as provided in Paragraphs (2) and (3) of this Subsection, the
25 current offense shall not be counted as, respectively, a second, third, fourth, or higher
26 offense if more than five years have elapsed between the date of the commission of
27 the current offense or offenses and the expiration of the correctional supervision, or
28 term of imprisonment if the offender is not placed on supervision following
29 imprisonment, for the previous conviction or convictions, or between the expiration
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HB NO. 364
1 of the correctional supervision, or term of imprisonment if the offender is not placed
2 on supervision following imprisonment, for each preceding conviction or convictions
3 alleged in the multiple offender bill and the date of the commission of the following
4 offense or offenses. In computing the intervals of time as provided in this Paragraph,
5 any period of parole, probation, or incarceration by a person in a penal institution,
6 within or without the state, shall not be included in the computation of any of the
7 five-year periods between the expiration of the correctional supervision, or term of
8 imprisonment if the offender is not placed on supervision following imprisonment,
9 and the next succeeding offense or offenses.
10 (2) Except as provided in Paragraph (3) of this Subsection, the The current
11 offense shall not be counted as, respectively, a second, third, fourth, or higher
12 offense if more than ten years have elapsed between the date of the commission of
13 the current offense or offenses and the expiration of correctional supervision, or term
14 of imprisonment if the offender is not placed on supervision following
15 imprisonment, for a crime of violence as defined in R.S. 14:2(B) or a sex offense as
16 defined in R.S. 15:541, or between the expiration of correctional supervision, or term
17 of imprisonment if the offender is not placed on supervision following
18 imprisonment, for each preceding conviction or convictions alleged in the multiple
19 offender bill for a crime of violence as defined in R.S. 14:2(B) or a sex offense as
20 defined in R.S. 15:541 and the date of the commission of the following offense or
21 offenses. In computing the intervals of time as provided in this Paragraph, any
22 period of parole, probation, or incarceration by a person in a penal institution, within
23 or without the state, shall not be included in the computation of any of the ten-year
24 periods between the expiration of correctional supervision, or term of imprisonment
25 if the offender is not placed on supervision following imprisonment, for a crime of
26 violence as defined in R.S. 14:2(B) or a sex offense as defined in R.S. 15:541 and the
27 next succeeding offense or offenses.
28 (3) Notwithstanding any provision of law to the contrary, a conviction for
29 a felony offense that is not a crime of violence as defined by R.S. 14:2(B) and that
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1 has been set aside and dismissed pursuant to Code of Criminal Procedure Article
2 893(E)(2), (3), or (4), shall not be considered as a prior conviction for purposes of
3 enhancing a felony that is not a crime of violence as defined by R.S. 14:2(B)
4 pursuant to the provisions of Paragraph (A)(1) of this Section and shall not be
5 included in the computation of the five-year time period set forth in Paragraph (1)
6 of this Subsection, or the ten-year time period as set forth in Paragraph (2) of this
7 Subsection, for purposes of enhancing a felony that is not a crime of violence as
8 defined by R.S. 14:2(B) pursuant to the provisions of Paragraph (A)(1) of this
9 Section.
10 D.(1)(a) If, at any time, either after conviction or sentence, it shall appear
11 that a person convicted of a felony offense that is a crime of violence or a sex offense
12 has previously been convicted of a felony offense that is a crime of violence or a sex
13 offense under the laws of this state, or has been convicted under the laws of any
14 other state, or of the United States, or of any foreign government or country, of a
15 crime, which, if committed in this state would be a felony offense that is a crime of
16 violence or a sex offense, the district attorney of the parish in which subsequent
17 conviction was had may file an information accusing the person of a previous
18 conviction. Whereupon the court in which the subsequent conviction was had shall
19 cause the person, whether confined in prison or otherwise, to be brought before it and
20 shall inform him of the allegation contained in the information and of his right to be
21 tried as to the truth thereof according to law and shall require the offender to say
22 whether the allegations are true. If he denies the allegation of the information or
23 refuses to answer or remains silent, his plea or the fact of his silence shall be entered
24 on the record and he shall be given fifteen days to file particular objections to the
25 information, as provided in Subparagraph (b) of this Paragraph. The judge shall fix
26 a day to inquire whether the offender has been convicted of a prior felony or felonies
27 as set forth in the information.
28 * * *
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1 (2) Following a contradictory hearing, the court shall find that the defendant
2 is:
3 (a) A second offender upon proof of a prior felony conviction for an offense
4 that is a crime of violence or a sex offense.
5 (b) A third offender, upon proof of two prior felony convictions each for an
6 offense that is a crime of violence or a sex offense.
7 (c) A fourth offender, upon proof of three or more prior felony convictions
8 each for an offense that is a crime of violence or a sex offense.
9 (3) When the judge finds that he the person has been convicted of a one or
10 more prior felony or felonies convictions each for an offense that is a crime of
11 violence or a sex offense, or if he acknowledges or confesses in open court, after
12 being duly cautioned as to his rights, that he has been so convicted, the court shall
13 sentence him to the punishment prescribed in this Section, and shall vacate the
14 previous sentence if already imposed, deducting from the new sentence the time
15 actually served under the sentence so vacated. The court shall provide written
16 reasons for its determination. Either party may seek review of an adverse ruling.
17 E. Whenever it shall become known to any superintendent or prison,
18 probation, parole, police, or other peace officer, that any person charged with or
19 convicted of a felony offense that is a crime of violence or a sex offense has been
20 previously convicted of a felony offense that is a crime of violence or a sex offense,
21 he shall immediately report the fact to the district attorney of the parish in which the
22 charge lies, or the conviction has been had.
23 * * *
24 J. For purposes of this Section, "correctional:
25 (1) "Correctional supervision" means any period of parole, probation, or
26 incarceration of a person in a penal institution, either within the state of Louisiana
27 or outside of the state.
28 (2) "Crime of violence" means any offense defined or enumerated in R.S.
29 14:2(B).
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1 (3) "Sex offense" has the same meaning as defined in R.S. 15:541.
2 K.(1) Except as provided in Paragraph (2) of this Subsection,
3 notwithstanding Notwithstanding any provision of law to the contrary, the court
4 shall apply the provisions of this Section that were in effect on the date that the
5 defendant's instant offense was committed.
6 (2) The provisions of Subsection C of this Section as amended by Act Nos.
7 257 and 282 of the 2017 Regular Session of the Legislature, which provides for the
8 amount of time that must elapse between the current and prior offense for the
9 provisions of this Section to apply, shall apply to any bill of information filed
10 pursuant to the provisions of this Section on or after November 1, 2017, accusing the
11 person of a previous conviction.
12 Section 2. Code of Criminal Procedure Article 893(E)(2), (3)(a), and (4) are hereby
13amended and reenacted to read as follows:
14 Art. 893. Suspension and deferral of sentence and probation in felony cases
15 * * *
16 E.
17 * * *
18 (2) Upon motion of the defendant, if the court finds at the conclusion of the
19 probationary period that the probation of the defendant has been satisfactory, the
20 court may set the conviction aside and dismiss the prosecution. The dismissal of the
21 prosecution shall have the same effect as acquittal, except that the conviction may
22 be considered as a first offense and provide the basis for subsequent prosecution of
23 the party as a habitual offender except as provided in R.S. 15:529.1(C)(3) pursuant
24 to R.S. 15:529.1. The conviction may be considered as a prior offense for purposes
25 of any other law or laws relating to cumulation of offenses. Dismissal under this
26 Paragraph shall occur only once with respect to any person.
27 (3)(a) When a case is accepted into a drug court division probation program
28 pursuant to the provisions of R.S. 13:5304 and at the conclusion of the probationary
29 period the court finds that the defendant has successfully completed all conditions
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1 of probation, the court with the concurrence of the district attorney may set aside the
2 conviction and dismiss prosecution, whether the defendant's sentence was suspended
3 under Paragraph A of this Article or deferred under Subparagraph (1) of this
4 Paragraph. The dismissal of prosecution shall have the same effect as an acquittal,
5 except that the conviction may be considered as a first offense and provide the basis
6 for subsequent prosecution of the party as a habitual offender except as provided in
7 R.S. 15:529.1(C)(3) pursuant to R.S. 15:529.1. The conviction may be considered
8 as a prior offense for purposes of any other law or laws relating to cumulation of
9 offenses.
10 * * *
11 (4) When a defendant, who has been committed to the custody of the
12 Department of Public Safety and Corrections to serve a sentence in the intensive
13 incarceration program pursuant to the provisions of Article 895(B)(3), has
14 successfully completed the intensive incarceration program as well as successfully
15 completed all other conditions of parole or probation, and if the defendant is
16 otherwise eligible, the court with the concurrence of the district attorney may set
17 aside the conviction and dismiss prosecution, whether the defendant's sentence was
18 suspended under Paragraph A of this Article or deferred under Subparagraph (1) of
19 this Paragraph. The dismissal of prosecution shall have the same effect as an
20 acquittal, except that the conviction may be considered as a first offense and provide
21 the basis for subsequent prosecution of the party as a habitual offender except as
22 provided in R.S. 15:529.1(C)(3) pursuant to R.S. 15:529.1. The conviction may be
23 considered as a prior offense for purposes of any other law or laws relating to
24 cumulation of offenses. Dismissal under this Subparagraph shall have the same
25 effect as an acquittal for purposes of expungement under the provisions of Title
26 XXXIV of this Code and may occur only once with respect to any person.
27 * * *
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HB NO. 364
DIGEST
The digest printed below was prepared by House Legislative Services. It constitutes no part
of the legislative instrument. The keyword, one-liner, abstract, and digest do not constitute
part of the law or proof or indicia of legislative intent. [R.S. 1:13(B) and 24:177(E)]
HB 364 Original 2020 Regular Session Gaines
Abstract: Provides that the habitual offender law shall be applied only to persons whose
instant conviction and any prior conviction is for a crime of violence or a sex
offense.
Present law (habitual offender law) provides that any person who, after having been
convicted of a felony, thereafter commits any subsequent felony within La., upon conviction
shall be subject to certain enhanced penalties as set forth in present law.
Proposed law amends present law to provide that the habitual offender law shall only be
applied only to persons whose instant conviction and any prior conviction is for a crime of
violence as defined by present law (R.S. 14:2(B)) or a sex offense as defined by present law
(R.S. 15:541).
Present law provides for the following penalties:
(1)If the third felony is such that upon a first conviction the offense would be
punishable by imprisonment for any term less than natural life, and if the third felony
and two prior felonies are defined as a crime of violence or sex offense when the
victim is under the age of 18, the person shall be imprisoned for the remainder of his
natural life, without benefit of parole, probation, or suspension of sentence.
Proposed law amends present law to provide that these penalties shall apply if the
third felony and either of the two prior felonies are defined as a sex offense when the
victim is under the age of 18.
(2)If the fourth or subsequent felony is such that upon a first conviction the offense
would be punishable by imprisonment for any term less than natural life, then the
following sentences apply:
(a)If the fourth felony and no prior felony is defined as a crime of violence or
as a sex offense, the person shall be imprisoned for not less than 20 years nor
more than twice the longest possible sentence prescribed for a first
conviction. If twice the possible sentence prescribed for a first conviction is
less than 20 years, the person shall be imprisoned for 20 years.
Proposed law amends present law to provide that these penalties shall apply
if the fourth felony and no prior felony is defined as a sex offense.
(b)If the fourth felony and two of the prior felonies are felonies defined as a
crime of violence or a sex offense when the victim is under the age of 18 at
the time of commission of the offense, the person shall be imprisoned for the
remainder of his natural life, without benefit of parole, probation, or
suspension of sentence.
Proposed law amends present law to provide that these penalties shall apply
if the fourth felony or any of the prior felonies is defined as a sex offense
when the victim is under the age of 18.
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Present law provides that, for purposes of the habitual offender law, the current offense
cannot be counted as a second, third, fourth, or higher offense if more than five years have
elapsed between the date of the commission of the current offense or offenses and the
expiration of the maximum sentence or sentences of the previous conviction or convictions.
With regard to prior convictions for offenses that are crimes of violence or sex offenses,
present law extends this period of time to ten years.
Proposed law amends present law to conform with changes in proposed law by removing
from present law the five-year cleansing period for offenses that are not a crime of violence
or a sex offense.
Present law provides the procedure by which a person is convicted as a habitual offender and
sentenced under the habitual offender law.
Proposed law makes changes to these provisions of present law to provide that these
provisions apply only to persons whose instant conviction and any prior conviction is for a
crime of violence or sex offense as provided in proposed law.
Present law (C.Cr.P. Art. 893) provides that when it appears that the best interest of the
public and of the defendant will be served, the court may defer, in whole or in part, the
imposition of a sentence after conviction of a first offense noncapital felony and place the
defendant on probation under the supervision of the division of probation and parole.
Present law (C.Cr.P. Art. 893) further provides that if the court finds at the conclusion of the
probationary period that the probation of the defendant has been satisfactory, the court may
set the conviction aside and dismiss the prosecution, which shall have the same effect as
acquittal. In this regard, present law provides that such convictions that have been set aside
and dismissed may only be considered as a first offense or provide the basis for subsequent
prosecution of the party as a habitual offender pursuant to present law which prohibits its use
for enhancement of a second felony offense that is not a crime of violence.
To conform with the changes in proposed law providing that the habitual offender law shall
only be applied to persons whose instant conviction and any prior conviction is for a crime
of violence or sex offense, proposed law removes the limitation in present law (C.Cr.P. Art.
893) referencing the prosecution under the habitual offender law and enhancement of a
felony offense that is not a crime of violence.
(Amends R.S. 15:529.1(A)(intro. para.), (1), (2), (3)(intro. para.) and (b), and (4), (C),
(D)(1)(a), (2), and (3), (E), (J), and (K) and C.Cr.P. Art. 893(E)(2), (3)(a), and (4))
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