State v. Tucker

Relator Tucker sought writs in No. 84-KH-1790, claiming that the prior conviction used to charge him as a multiple offender was pursuant to a 5 to 1 jury verdict and therefore unconstitutional under Burch v. Louisiana, 441 U.S. 130, 99 S.Ct. 1623, 60 L.Ed.2d 96 (1979). The Court had previously granted post conviction relief in a case where a conviction unconstitutionally obtained in violation of Ballew v. Georgia, 435 U.S. 223, 98 S.Ct. 1029, 55 L.Ed.2d 234 (1978) was used to charge a defendant as a *301multiple offender. State ex rel. Becnel v. Blackburn, 410 So.2d 1015 (La. 1982). The Court rendered a ruling on Tucker’s petition in No. 84-KH-1790 on November 26, 1984, 458 So.2d 912, setting aside the trial court’s ruling and remanding for reconsideration in light of State ex rel. Becnel v. Blackburn, supra.

In response to this Court’s November 26, 1984 order, the trial court rendered a judgment denying the relief sought by Tucker. The denial was based on a determination that the multiple bill against Tucker relied upon a simple robbery conviction obtained upon a plea of guilty, not a conviction obtained after jury trial and verdict.

Aggrieved by the trial court’s denial of relief, relator has again petitioned the Court, again directing attention to court records which establish the simple robbery conviction in 245-349 G, upon which the multiple bill relies, was pursuant to a jury verdict returned on February 21, 1975, not a plea of guilty entered on February 27, 1976, as the multiple bill indicates. The list of possible verdicts on which the jury recorded its finding of guilt in 245-349 G indicates that the vote of the jurors was 5 to 1.

In view of the foregoing, the trial court judgment denying relief is set aside and the matter is remanded for the court’s reconsideration in light of State ex rel. Becnel v. Blackburn, 410 So.2d 1015 (La. 1982).