State v. Madina

ARMSTRONG, Judge. The defendant, Fabia Madina, was charged with and convicted of a violation of LSA-R.S. 40:966, relative to the offense of distribution of a controlled dangerous substance, to-wit: heroin. She was sentenced to life imprisonment without benefit of probation, parole or suspension of sentence under LSA-R.S. 40:966B(1). On appeal the defendant raises as an assignment of error the illegality of sentence. She maintains that the trial court erred in imposing a sentence without benefit of parole. We find that an illegal sentence was imposed by the trial court. The pertinent sentencing provision found in LSA-R.S. 40:966B(1) mandates that a defendant sentenced thereunder shall not be allowed the benefit of probation or suspension of sentence but is silent as to the benefit of parole.1 This court has held that to deny a defendant parole eligibility under LSA-R.S. 40:966 is illegally excessive. State v. Scott, 490 So.2d 465 (La.App. 4th Cir.1986); State v. Harvey, 487 So.2d 630 (La.App. 4th Cir.1986). Accordingly, defendant’s conviction is affirmed but the sentence is amended to delete the portion denying the defendant parole eligibility. Sentence Affirmed As Amended BARRY, J., concurs. Footnotes [1] R.S. 40:966B(1) states: A substance classified in Schedule 1 which is a narcotic drug ..., upon conviction shall be sentenced to life imprisonment at hard labor without benefit of probation, or suspension of sentence, and may, in addition, be required to pay a fine of not more than fifteen thousand dollars.