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Code of Criminal Procedure

Title XXIX. Motions for New Trial and in Arrest of Judgment

Chapter 1. Motion for New Trial

Art. 851. Grounds for new trial

A.  The motion for a new trial is based on the supposition that injustice has been done the defendant, and, unless such is shown to have been the case the motion shall be denied, no matter upon what allegations it is grounded.

B.  The court, on motion of the defendant, shall grant a new trial whenever any of the following occur:

(1)  The verdict is contrary to the law and the evidence.

(2)  The court's ruling on a written motion, or an objection made during the proceedings, shows prejudicial error.

(3)  New and material evidence that, notwithstanding the exercise of reasonable diligence by the defendant, was not discovered before or during the trial, is available, and if the evidence had been introduced at the trial it would probably have changed the verdict or judgment of guilty.

(4)  The defendant has discovered, since the verdict or judgment of guilty, a prejudicial error or defect in the proceedings that, notwithstanding the exercise of reasonable diligence by the defendant, was not discovered before the verdict or judgment.

(5)  The court is of the opinion that the ends of justice would be served by the granting of a new trial, although the defendant may not be entitled to a new trial as a matter of strict legal right.

(6)  The defendant is a victim of human trafficking or trafficking of children for sexual purposes and the acts for which the defendant was convicted were committed by the defendant as a direct result of being a victim of the trafficking activity.

Amended by Acts 1974, No. 207, §1; Acts 2014, No. 564, §6.

Art. 852. Form, content, and trial of motion for new trial

A motion for a new trial shall be in writing, shall state the grounds upon which it is based, and shall be tried contradictorily with the district attorney.

Art. 853. Time for filing motion for new trial

A.  Except as otherwise provided by this Article, a motion for a new trial must be filed and disposed of before sentence.  The court, on motion of the defendant and for good cause shown, may postpone the imposition of sentence for a specified period in order to give the defendant additional time to prepare and file a motion for a new trial.

B.  When the motion for a new trial is based on Article 851(B)(3) of this Code, the motion may be filed within one year after verdict or judgment of the trial court, although a sentence has been imposed or a motion for a new trial has been previously filed.  However, if an appeal is pending, the court may hear the motion only on remand of the case.

C.  When the motion for a new trial is based on Article 851(B)(6) of this Code, the motion may be filed within three years after the verdict or judgment of the trial court, although a sentence has been imposed or a motion for new trial has been previously filed.  However, if an appeal is pending, the court may hear the motion only on remand of the case.

Acts 2014, No. 564, §6.

Art. 854. Newly discovered evidence;  necessary allegations

A motion for a new trial based on ground (3) of Article 851 shall contain allegations of fact, sworn to by the defendant or his counsel, showing:

(1)  That notwithstanding the exercise of reasonable diligence by the defendant, the new evidence was not discovered before or during the trial;

(2)  The names of the witnesses who will testify and a concise statement of the newly discovered evidence;

(3)  The facts which the witnesses or evidence will establish; and

(4)  That the witnesses or evidence are not beyond the process of the court, or are otherwise available.

The newly discovered whereabouts or residence of a witness do not constitute newly discovered evidence.

Art. 855. Errors discovered after verdict or judgment of guilty;  necessary allegations

A motion for a new trial based on ground (4) of Article 851 shall contain allegations of fact sworn to by the defendant or his counsel, showing:

(1)  The specific nature of the error or defect complained of; and

(2)  That, notwithstanding the exercise of reasonable diligence by the defense, the error or defect was not discovered before or during the trial.

Art. 855.1. Conviction based on acts committed as a victim of trafficking

A motion for new trial based on Article 851(B)(6) of this Code shall be available only to persons convicted of violating R.S. 14:82, 83.3, 83.4, 89, or 89.2 prior to August 1, 2014, and shall contain allegations of fact sworn to by the defendant or counsel of the defendant, showing that the defendant was convicted of the offense which was committed as a direct result of being a victim of human trafficking or trafficking of children for sexual purposes, or a victim of an offense which would constitute human trafficking or trafficking of children for sexual purposes regardless of the date of conviction.  The motion shall provide information showing a rational and causal connection between the acts for which the defendant was convicted and the acts upon which the defendant bases his status as a victim.

Acts 2014, No. 564, §6.

Art. 856. Motion to urge all available grounds;  exceptions

A motion for a new trial shall urge all grounds known and available to the defendant at the time of the filing of the motion.  However, the court may permit the defendant to supplement his original motion by urging an additional ground, or may permit the defendant to file an additional motion for a new trial, prior to the court's ruling on the motion.

Art. 857. Effect of granting new trial

The effect of granting a new trial is to set aside the verdict or judgment and to permit retrial of the case with as little prejudice to either party as if it had never been tried.

Art. 858. Review of ruling on motion for new trial

Neither the appellate nor supervisory jurisdiction of the supreme court may be invoked to review the granting or the refusal to grant a new trial, except for error of law.

Chapter 2. Motion in Arrest of Judgment

Art. 859. Grounds for arrest of judgment

The court shall arrest the judgment only on one or more of the following grounds:

(1)  The indictment is substantially defective, in that an essential averment is omitted;

(2)  The offense charged is not punishable under a valid statute;

(3)  The court is without jurisdiction of the case;

(4)  The tribunal that tried the case did not conform with the requirements of Articles 779, 780 and 782 of this code;

(5)  The verdict is not responsive to the indictment, or is otherwise so defective that it will not form the basis of a valid judgment;

(6)  Double jeopardy, if not previously urged; or

(7)  The prosecution was not timely instituted, if not previously urged.

(8)  The prosecution was for a capital offense or for an offense punishable by life imprisonment, but was not instituted by a grand jury indictment.

Improper venue may not be urged by a motion in arrest of judgment.

Amended by Acts 1968, No. 145, §1; Acts 1974, Ex.Sess., No. 26, §1, eff. Jan. 1, 1975.

Art. 860. Form, content, and trial of motion in arrest

A motion in arrest of judgment shall be in writing, shall state the ground upon which it is based, and shall be tried contradictorily with the district attorney.

Art. 861. Time for filing motion in arrest

A motion in arrest of judgment must be filed and disposed of before sentence.  The court, on motion of the defendant and for cause shown, may postpone the imposition of sentence for a specified period in order to give the defense additional time to prepare and file a motion in arrest of judgment.

Art. 862. Effect of sustaining motion in arrest of judgment

If the judgment is arrested because of a defect in the indictment, the indictment shall be dismissed and the defendant shall be discharged as to that indictment.  However, a new indictment may be filed within the time limitation stated in Article 576.

If the judgment is arrested because the court is without jurisdiction of the case, the defendant shall be discharged, but may be tried by a court of proper jurisdiction.

If the judgment is arrested because the wrong type of tribunal tried the case, or because the verdict is not responsive to the indictment or is otherwise fatally defective, the defendant shall be remanded to custody or bail to await a new trial.

If the judgment is arrested on any other ground, the defendant shall be discharged.

Title XXX. Sentence

Chapter 1. General Sentencing Provisions

Art. 871. Sentence defined;  pronouncing and recording of sentence;  certification of conviction

A.  A sentence is the penalty imposed by the court on a defendant upon a plea of guilty, upon a verdict of guilty, or upon a judgment of guilt.  Sentence shall be pronounced orally in open court and recorded in the minutes of the court.

B.(1)(a)  In every judgment of guilty of a felony or of one of the misdemeanors enumerated in Subparagraph (2) of this Paragraph, the sheriff shall cause to be attached to the bill of information or indictment the fingerprints of the defendant against whom such judgment is rendered.

(b)(i)  Beneath such fingerprints shall be appended a certificate to the following effect:

"I hereby certify that the above and foregoing fingerprints on this bill are the fingerprints of the defendant, and that they were placed thereon by said defendant this ______ day of ______, ______."

(ii)  The certificate shall be signed by the sheriff or other law enforcement officer who has custody of the defendant.

(2)  In addition to judgments of guilty of a felony, the sheriff shall cause the fingerprints of the defendant to be so attached for every judgment of guilty of the following misdemeanors:

(a)  First or second offense operating a vehicle while intoxicated in violation of R.S. 14:98.

(b)  First offense possession of marijuana, tetrahydrocannabinol, or chemical derivatives thereof, pursuant to a sentence imposed under R.S. 40:966(D)(1).

(c)  A first or second offense involving drug paraphernalia pursuant to a sentence imposed under R.S. 40:1035(A) and (B).

(d)  First or second offense theft pursuant to a sentence imposed under R.S. 14:67(B)(3) and first or second offense theft of goods pursuant to a sentence imposed under R.S. 14:67.10(B)(3).

(e)  First offense prostitution pursuant to a sentence imposed under R.S. 14:82(B)(1).

(f)  First or second offense of domestic abuse battery in violation of R.S. 14:35.3.

(g)  First offense of failure to pay a child support obligation in violation of R.S. 14:75.

(h)  A conviction for violation of protective orders (R.S. 14:79).

C.  The certificate required by Paragraph B of this Article shall be admissible in evidence in the courts of this state as prima facie evidence that the fingerprints appearing thereon are the fingerprints of the defendant against whom the judgment of guilty of a felony or one of the enumerated misdemeanors was rendered.

Amended by Acts 1978, No. 302, §1; Acts 1979, No. 297, §1; Acts 1997, No. 852, §1; Acts 2003, No. 311, §1; Acts 2010, No. 513, §1.

Art. 871.1. Sentencing orders to be sent to Louisiana Protective Order Registry

If part of the sentence contains an order for the purpose of preventing violent or threatening acts or harassment against, contact or communication with, or physical proximity to, another person in order to prevent domestic abuse or dating violence, the judge shall cause to have prepared a Uniform Abuse Prevention Order, as provided in R.S. 46:2136.2(C), shall sign such order, and shall immediately forward it to the clerk of court for filing on the day that the order is issued.  The clerk of the issuing court shall transmit the Uniform Abuse Prevention Order to the Judicial Administrator's Office, Louisiana Supreme Court, for entry into the Louisiana Protective Order Registry, as provided in R.S. 46:2136.2(A), by facsimile transmission or direct electronic input as expeditiously as possible, but no later than the end of the next business day after the order is filed with the clerk of court.  The clerk of the issuing court shall also send a copy of the Uniform Abuse Prevention Order, as provided in R.S. 46:2136.2(C), or any modification thereof, to the chief law enforcement officer of the parish where the person or persons protected by the order reside by facsimile transmission or direct electronic input as expeditiously as possible, but no later than the end of the next business day after the order is filed with the clerk of court.  A copy of the Uniform Abuse Prevention Order shall be retained on file in the office of the chief law enforcement officer until otherwise directed by the court.

Acts 1997, No. 1156, §3; Acts 2003, No. 750, §2; Acts 2014, No. 317, §6.

Art. 871.2. Presentence inquiry of veteran status

Prior to the imposition of a sentence, the court may inquire and receive response, orally or in writing, whether the convicted defendant is currently serving in or is a veteran of the armed forces of the United States.  If the convicted defendant is currently serving in the military or is a veteran, the court may order a presentence investigation pursuant to Article 875(F) to determine whether military and veteran resources are available.

Acts 2013, No. 29, §1.

Art. 872. Basis for valid sentence

A valid sentence must rest upon a valid and sufficient:

(1)  Statute;

(2)  Indictment; and

(3)  Verdict, judgment, or plea of guilty.

Art. 873. Delay between conviction and sentence

If a defendant is convicted of a felony, at least three days shall elapse between conviction and sentence.  If a motion for a new trial, or in arrest of judgment, is filed, sentence shall not be imposed until at least twenty-four hours after the motion is overruled.  If the defendant expressly waives a delay provided for in this article or pleads guilty, sentence may be imposed immediately.

Art. 874. Prompt sentence required;  relief by writs

Sentence shall be imposed without unreasonable delay.  If a defendant claims that the sentence has been unreasonably delayed, he may invoke the supervisory jurisdiction of the appellate court.

Acts 1993, No. 975, §1.

Art. 875. Presentence investigation;  juvenile records;  drug screening;  veterans

A.(1)  If a defendant is convicted of a felony offense or a misdemeanor offense that has been reduced from a felony, the court may order the Department of Public Safety and Corrections, division of probation and parole, to make a presentence investigation.  All such reports shall be made within sixty days of conviction except that when the defendant is released on bond pending imposition of sentence, such reports shall be made within ninety days of conviction.  In making the investigation, the probation officer shall inquire into the circumstances attending the commission of the offense, the defendant's history of delinquency or criminality, his family situation and background, economic and employment status, education, and personal habits.

(2)  The probation officer shall also indicate specifically those resources available in the community which could provide needed assistance to the defendant should he be released on probation and shall inquire into other matters deemed relevant by the officer or ordered investigated by the court.  The court may postpone imposition of sentence until the report is received.

(3)  Local and state law enforcement agencies and mental and correctional institutions shall furnish to the probation officer criminal records and such other information and data as the probation officer requests.  The defendant's pretrial and post-conviction disciplinary records shall be furnished to the probation officer and included in the presentence investigation.  The court may order a physical and mental examination of the defendant.

(4)(a)  If the court orders a presentence investigation to be conducted, the court shall simultaneously order the defendant to pay to the department an amount not to exceed one hundred fifty dollars to defray the cost of conducting the presentence investigation and preparing presentence investigation reports.  The order to pay shall be included in the judgment.

(b)  The amount to be paid by the defendant pursuant to this Subparagraph shall be determined by the Department of Public Safety and Corrections and shall be based on the defendant's ability to pay.  In making this determination, the department may consider such factors as the defendant's income, property owned by the defendant, outstanding obligations of the defendant, and the number and ages of any dependents of the defendant.

B.  If a defendant is convicted or pleads guilty to an offense involving a victim, the court shall require that a victim impact statement be included in the presentence report.  The victim impact statement shall include factual information as to whether the victim or his family has suffered, as a result of the offense, any monetary loss, medical expense, physical impairment, and any other information deemed relevant.  The district attorney may also file a victim impact statement with the court.

C.(1)  The court may also make a written request of any juvenile court for an abstract containing only the delinquent acts of a convicted defendant currently before the requesting judge.  The request shall be promptly complied with; provided, however, not more than ten days, exclusive of Saturdays, Sundays and legal holidays, shall lapse before the requested information is deposited in the mail, addressed to the requesting court.  The court may postpone imposition of sentence until the report is received.

(2)  The requesting court shall not copy, duplicate or otherwise reproduce such juvenile records, and these records shall be deposited in the mail and addressed to the issuing juvenile court within seventy-two hours, exclusive of Saturdays, Sundays and legal holidays, after sentencing.

(3)  Failure to comply with the provisions of this Subsection shall subject the violating court to disciplinary action by the Supreme Court of Louisiana upon receipt by the judicial administrator of the supreme court of a written complaint, subsequently substantiated.

D.  If the defendant is sentenced to imprisonment, a copy of the report shall be transmitted by the division of probation and parole to the institution to which he is committed.

E.(1)  If a defendant is convicted of a second or subsequent violation of the Controlled Dangerous Substances Law as provided in R.S. 40:982, the court may order that the defendant submit to a chemical test to determine the presence or use of any controlled dangerous substance.  The result of any such test shall be a part of the presentence investigation report.

(2)  Any test so ordered shall be conducted at the cost of the defendant.  The court's order shall include guidelines that will assure a test approved by the court and protection for the chain of custody for the test results.

(3)  The test results shall be used exclusively by the court for guidance in determining the sentence or conditions of release of the defendant.  Thereafter, the court shall order that this part of the record be sealed, to be opened pursuant only to court order.  To this end, the test results shall not be duplicated by the court for any reason, provided that the defendant and his counsel shall have access to them prior to sentencing.  Under no circumstances shall the information contained in the results be used as evidence or as the basis of any additional charge against the defendant.

F.  If a convicted defendant is currently serving in the military or is a veteran and has been diagnosed as having a mental illness by a qualified psychiatrist or clinical psychologist or physician, the court may order a presentence investigation pursuant to this Article.  In conducting the presentence investigation, the Department of Public Safety and Corrections, division of probation and parole, in addition to the requirements of Paragraphs A through E of this Article, shall:

(1)  Consult with the United States Department of Veterans Affairs, Louisiana Department of Veterans Affairs, or another agency or person with suitable knowledge or experience, for the purpose of providing the court with information regarding treatment options available to the convicted defendant, including federal, state, and local programming.

(2)  Consider the treatment recommendations of any diagnosing or treating mental health professionals together with the treatment options available to the defendant in imposing a sentence.

Acts 1974, No. 110, §1; Acts 1975, No. 354, §1; Acts 1978, No. 380, §1; Acts 1983, No. 277, §1; Acts 1986, No. 482, §1; Acts 1989, No. 16, §1; Acts 1990, No. 1028, §1; Acts 2010, No. 562, §1; Acts 2011, No. 220, §1; Acts 2013, No. 29, §1.

Art. 875.1. Determination of substantial financial hardship to the defendant

A. The purpose of imposing financial obligations on an offender who is convicted of a criminal offense is to hold the offender accountable for his action, to compensate victims for any actual pecuniary loss or costs incurred in connection with a criminal prosecution, to defray the cost of court operations, and to provide services to offenders and victims. These financial obligations should not create a barrier to the offender's successful rehabilitation and reentry into society. Financial obligations in excess of what an offender can reasonably pay undermine the primary purpose of the justice system which is to deter criminal behavior and encourage compliance with the law. Financial obligations that cause undue hardship on the offender should be waived, modified, or forgiven. Creating a payment plan for the offender that is based upon the ability to pay, results in financial obligations that the offender is able to comply with and often results in more money collected. Offenders who are consistent in their payments and in good faith try to fulfill their financial obligations should be rewarded for their efforts.

            B. For purposes of this Article, "financial obligations" shall include any fine, fee, cost, restitution, or other monetary obligation authorized by this Code or by the Louisiana Revised Statutes of 1950 and imposed upon the defendant as part of a criminal sentence, incarceration, or as a condition of the defendant's release on probation or parole.

            C.(1) Notwithstanding any provision of law to the contrary, prior to ordering the imposition or enforcement of any financial obligations as defined by this Article, the court shall determine whether payment in full of the aggregate amount of all the financial obligations to be imposed upon the defendant would cause substantial financial hardship to the defendant or his dependents.

            (2) The defendant may not waive the judicial determination of a substantial financial hardship required by the provisions of this Paragraph.

            D.(1) If the court determines that payment in full of the aggregate amount of all financial obligations imposed upon the defendant would cause substantial financial hardship to the defendant or his dependents, the court shall do either of the following:

            (a) Waive all or any portion of the financial obligations.

            (b) Order a payment plan that requires the defendant to make a monthly payment to fulfill the financial obligations.

            (2)(a) The amount of each monthly payment for the payment plan ordered pursuant to the provisions of Subsubparagraph (1)(b) of this Paragraph shall be equal to the defendant's average gross daily income for an eight-hour work day.

            (b) If the court has ordered restitution, half of the defendant's monthly payment shall be distributed toward the defendant's restitution obligation.

            (c) During any periods of unemployment, homelessness, or other circumstances in which the defendant is unable to make the monthly payment, the court or the defendant's probation and parole officer is authorized to impose a payment alternative, including but not limited to any of the following: substance abuse treatment, education, job training, or community service.

            (3) If, after the initial determination of the defendant's ability to fulfill his financial obligations, the defendant's circumstances and ability to pay his financial obligations change, the defendant or his attorney may file a motion with the court to reevaluate the defendant's circumstances and determine, in the same manner as the initial determination, whether under the defendant's current circumstances payment in full of the aggregate amount of all the financial obligations imposed upon the defendant would cause substantial financial hardship to the defendant or his dependents. Upon such motion, if the court determines that the defendant's current circumstances would cause substantial financial hardship to the defendant or his dependents, the court may either waive or modify the defendant's financial obligation, or recalculate the amount of the monthly payment made by the defendant under the payment plan set forth in Subsubparagraph (1)(b) of this Paragraph.

            E. If a defendant is ordered to make monthly payments under a payment plan established pursuant to the provisions of Subsubparagraph (D)(1)(b) of this Article, the defendant's outstanding financial obligations resulting from his criminal conviction are forgiven and considered paid-in-full if the defendant makes consistent monthly payments for either twelve consecutive months or consistent monthly payments for half of the defendant's term of supervision, whichever is longer.

            F. If, at the termination or end of the defendant's term of supervision, any restitution ordered by the court remains outstanding, the balance of the unpaid restitution shall be reduced to a civil money judgment in favor of the person to whom restitution is owed, which may be enforced in the same manner as provided for the execution of judgments pursuant to the Code of Civil Procedure. For any civil money judgment ordered under this Article, the clerk shall send notice of the judgment to the last known address of the person to whom the restitution is ordered to be paid.

            G. The provisions of this Article shall apply only to defendants convicted of offenses classified as felonies under applicable law.

            Repealed by Acts 1995, No. 942, §3; Acts 2017, No. 260, §1, eff. Aug. 1, 2018; Acts 2018, No. 137, §1, eff. Aug. 1, 2018; Acts 2018, No. 668, §1, eff. Aug. 1, 2019, §4, eff. Aug. 1, 2018.

NOTE: This article was enacted by Acts 2017, No. 260 with an effective date of Aug. 1, 2018. Subsequent Acts delayed the effective date of Act 260 to Aug. 1, 2021. (See Acts 2018, No. 137 and 668 and Acts 2019, No. 253). Acts 2018, No. 668 amended the substance of this Article with an effective date of Aug. 1, 2019 which was not amended by the 2019 Act which delayed the effective date of Acts 2017, No. 260 to Aug. 1, 2021.

Art. 876. Sentence for crime committed as a child

A.  An adult who is charged with an offense committed at the time he was a child for which the time limitation for the institution of prosecution pursuant to Code of Criminal Procedure Article 571 has not lapsed and for which he was subject to prosecution as an adult due to his age at the time the offense was committed shall be prosecuted as an adult in the appropriate court exercising criminal jurisdiction.  If convicted, he shall be punished as an adult as provided by law.

B.  An adult who is charged with an offense committed at the time he was a child for which the time limitation for the institution of prosecution pursuant to Code of Criminal Procedure Article 571 has not lapsed and for which he was not subject to prosecution as an adult due to his age at the time the offense was committed shall be prosecuted as an adult in the appropriate court exercising criminal jurisdiction.  If convicted, he may be committed to the custody of the Department of Public Safety and Corrections to be confined in secure placement for a period of time as determined by the court not to exceed the maximum amount of confinement he could have been ordered to serve had he been adjudicated for the offense as a child at the time the offense was committed.

Acts 2008, No. 670, §2; Acts 2010, No. 805, §2.

Art. 877. Protection of investigation reports

A.  The presentence and postsentence investigation reports shall be privileged and shall not be disclosed directly or indirectly to anyone other than the sentencing court, the victim or the victim's designated family member, as defined in R.S. 46:1842, the prosecutor, members of the division of probation and parole within the office of adult services, the officer in charge of the institution to which the defendant is committed, the committee on parole, the probation or the parole officer if the defendant is placed on probation or released on parole, medical authorities directly involved in the defendant's rehabilitation or treatment if the defendant is committed to a hospital or a substance abuse program, the Board of Pardons, and the governor or his representative.  However, this Article shall not require the disclosure of sources of confidential information.

B.  Before imposing sentence the court may advise the defendant or his counsel of the factual contents and conclusions of any presentence investigation report.  The sources of confidential information shall not, however, be disclosed.  If the defendant contests any information contained in the presentence report, the court shall provide the district attorney the same access to the report as was given to the defendant or his counsel.  The district attorney may respond to the defendant's contentions concerning the information in the presentence report.

C.  The presentence investigation report, edited to protect sources of confidential information, shall be made a part of the record if the defendant seeks post-conviction relief only on the grounds of an excessive sentence imposed by the court.

Acts 1985, No. 200, §1, eff. July 6, 1985; Acts 1985, No. 384, §1; Acts 1992, No. 300, §1; Acts 1999, No. 148, §1; Acts 1999, No. 783, §3, eff. Jan. 1, 2000.

Art. 878. Cruel or unusual punishment

A sentence shall not be set aside on the ground that it inflicts cruel or unusual punishment unless the statute under which it is imposed is found unconstitutional.

Art. 878.1. Hearing to determine parole eligibility for certain juvenile offenders

            A. If an offender is indicted on or after August 1, 2017, for the crime of first degree murder (R.S. 14:30) where the offender was under the age of eighteen years at the time of the commission of the offense, the district attorney may file a notice of intent to seek a sentence of life imprisonment without possibility of parole within one hundred eighty days after the indictment. If the district attorney timely files the notice of intent, a hearing shall be conducted after conviction and prior to sentencing to determine whether the sentence shall be imposed with or without parole eligibility. If the court determines that the sentence shall be imposed with parole eligibility, the offender shall be eligible for parole pursuant to the provisions of R.S. 15:574.4(E). If the district attorney fails to timely file the notice of intent, the sentence shall be imposed with parole eligibility and the offender shall be eligible for parole pursuant to the provisions of R.S. 15:574.4(E) without the need of a judicial determination pursuant to the provisions of this Article. If the court determines that the sentence shall be imposed without parole eligibility, the offender shall not be eligible for parole.

            B.(1) If an offender was indicted prior to August 1, 2017, for the crime of first degree murder (R.S. 14:30) or second degree murder (R.S. 14:30.1) where the offender was under the age of eighteen years at the time of the commission of the offense and a hearing was not held pursuant to this Article prior to August 1, 2017, to determine whether the offender's sentence should be imposed with or without parole eligibility, the district attorney may file a notice of intent to seek a sentence of life imprisonment without the possibility of parole within ninety days of August 1, 2017. If the district attorney timely files the notice of intent, a hearing shall be conducted to determine whether the sentence shall be imposed with or without parole eligibility. If the court determines that the sentence shall be imposed with parole eligibility, the offender shall be eligible for parole pursuant to R.S. 15:574.4(G). If the district attorney fails to timely file the notice of intent, the offender shall be eligible for parole pursuant to R.S. 15:574.4(E) without the need of a judicial determination pursuant to the provisions of this Article. If the court determines that the sentence shall be imposed without parole eligibility, the offender shall not be eligible for parole.

            (2) If an offender was indicted prior to August 1, 2017, for the crime of first degree murder (R.S. 14:30) or second degree murder (R.S. 14:30.1) where the offender was under the age of eighteen years at the time of the commission of the offense and a hearing was held pursuant to this Article prior to August 1, 2017, the following shall apply:

            (a) If the court determined at the hearing that was held prior to August 1, 2017, that the offender's sentence shall be imposed with parole eligibility, the offender shall be eligible for parole pursuant to R.S. 15:574.4(G).

            (b) If the court determined at the hearing that was held prior to August 1, 2017, that the offender's sentence shall be imposed without parole eligibility, the offender shall not be eligible for parole.

            C. At the hearing, the prosecution and defense shall be allowed to introduce any aggravating and mitigating evidence that is relevant to the charged offense or the character of the offender, including but not limited to the facts and circumstances of the crime, the criminal history of the offender, the offender's level of family support, social history, and such other factors as the court may deem relevant. The admissibility of expert witness testimony in these matters shall be governed by Chapter 7 of the Code of Evidence.

            D. The sole purpose of the hearing is to determine whether the sentence shall be imposed with or without parole eligibility. The court shall state for the record the considerations taken into account and the factual basis for its determination. Sentences imposed without parole eligibility and determinations that an offender is not entitled to parole eligibility should normally be reserved for the worst offenders and the worst cases.

            Acts 2013, No. 239, §2; Acts 2017, No. 277, §2.

Art. 879. Determinate sentence required

If a defendant who has been convicted of an offense is sentenced to imprisonment, the court shall impose a determinate sentence.

Art. 880. Credit for prior custody;  limitations

A.  A defendant shall receive credit toward service of his sentence for time spent in actual custody prior to the imposition of sentence.

B.  A defendant shall receive credit only for time in actual custody and only once during any calendar month when consecutive sentences are imposed.

C.  No defendant shall receive credit for any time served prior to the commission of the crime.

D.  A defendant shall not receive credit for time served under home incarceration.

E.  A defendant shall not receive overlapping jail credit, except in the instance of concurrent sentences and then only for time spent in jail on the instant felony.

Amended by Acts 1970, No. 285, §1; Acts 1997, No. 788, §1; Acts 2006, No. 174, §2; Acts 2011, No. 186, §1.

Art. 881. Amendment of sentence

A.  Although the sentence imposed is legal in every respect, the court may amend or change the sentence, within the legal limits of its discretion, prior to the beginning of execution of the sentence.

B.(1)  After commencement of execution of sentence, in felony cases in which the defendant has been sentenced to imprisonment without hard labor and in misdemeanor cases, the sentencing judge may reduce the sentence or may amend the sentence to place the defendant on supervised probation.  Should the court consider any motion amending or changing the sentence imposed, either prior to or after execution of the sentence, the district attorney shall be notified and, if such motion is filed by the defendant, it shall be tried contradictorily with the district attorney, unless the district attorney waives such contradictory hearing.

(2)  Such motions include but are not limited to motions for a new trial, motions in arrest of judgment, motions for amendment, modification, or reconsideration of sentence, and motions for modification of conditions of probation or termination of probation.

(3)  If a sentence is reduced or amended, a copy of the minute entry reflecting the judgment reducing or amending the sentence shall be furnished to the district attorney and the arresting law enforcement agency.

C.  If the sentence imposed by the court is consecutive to a sentence imposed in a different criminal proceeding, for purposes of this Article only, commencement of the execution of sentence begins when the defendant is remanded by the sentencing court to the Department of Public Safety and Corrections, to begin serving either the imposed sentence or a prior sentence to which the imposed sentence is consecutive.

Acts 1987, No. 59, §1; Acts 1997, No. 1321, §1.

 

Art. 881.1. Motion to reconsider sentence

A.(1)  In felony cases, within thirty days following the imposition of sentence or within such longer period as the trial court may set at sentence, the state or the defendant may make or file a motion to reconsider sentence.

(2)  In misdemeanor cases, the defendant may file a motion to reconsider sentence at any time following commencement or execution of such sentence.  The court may grant the motion and amend the sentence, even following completion of execution of the sentence, to impose a lesser sentence which could lawfully have been imposed.

(3)  In the event a defendant alleges mutual mistake in that the sentence imposed upon conviction pursuant to Code of Criminal Procedure Article 893 was in error and the prosecuting authority, the court, and the defendant intended that the imposition of sentence was to be deferred pursuant to Code of Criminal Procedure Article 893(E), such defendant may file a motion to reconsider the sentence for the sole purpose of considering that issue.  Such motion shall be filed within two years of the date of successful completion of the probation imposed by the court.  If the court finds that a mutual mistake exists and that the defendant was in all other respects eligible for the benefits of Code of Criminal Procedure Article 893(E), the defendant shall be entitled to the benefits thereof, in accordance with law.

(4)  In cases when a defendant has successfully completed probation pursuant to the provisions of Code of Criminal Procedure Article 895(B)(3), the defendant may file a motion to reconsider the sentence for the purpose of determining whether the sentence should be set aside and the prosecution dismissed pursuant to the provisions of Code of Criminal Procedure Article 893.  Such motion shall be filed within two years of the date of successful completion of the probation imposed by the court.  If the court finds that the defendant is eligible for the benefits of Code of Criminal Procedure Article 893(E), then the court with the concurrence of the district attorney may set aside the conviction and dismiss prosecution in accordance with law.

B.  The motion shall be oral at the time of sentence or shall be in writing thereafter and shall set forth the specific grounds on which the motion is based.

C.  If a motion is made or filed under Paragraph A of this Article, the trial court may resentence the defendant despite the pendency of an appeal or the commencement of execution of the sentence.

D.  The trial court may deny a motion to reconsider sentence without a hearing, but may not grant a motion to reconsider without a contradictory hearing.  If the court denies the motion without a hearing, the party who made or filed the motion may proffer the evidence it would have offered in support of the motion.

E.  Failure to make or file a motion to reconsider sentence or to include a specific ground upon which a motion to reconsider sentence may be based, including a claim of excessiveness, shall preclude the state or the defendant from raising an objection to the sentence or from urging any ground not raised in the motion on appeal or review.

Acts 1991, No. 38, §1; eff. Jan. 1, 1992; Acts 2003, No. 167, §1; Acts 2008, No. 395, §1, eff. June 21, 2008; Acts 2009, No. 168, §1.

NOTE:  See Acts 1991, No. 38, §3, for special effective date.

Art. 881.2. Review of sentence

A.(1)  The defendant may appeal or seek review of a sentence based on any ground asserted in a motion to reconsider sentence.  The defendant also may seek review of a sentence which exceeds the maximum sentence authorized by the statute under which the defendant was convicted and any applicable statutory enhancement provisions.

(2)  The defendant cannot appeal or seek review of a sentence imposed in conformity with a plea agreement which was set forth in the record at the time of the plea.

B.  The state may appeal or seek review of a sentence:

(1)  If the sentence imposed was not in conformity with:

(a)  Mandatory requirements of the statute under which the defendant was convicted, or any other applicable mandatory sentence provision; or

(b)  The applicable enhancement provisions under the Habitual Offender Law, R.S. 15:529.1; and

(2)  If the state objected at the time the sentence was imposed or made or filed a motion to reconsider sentence under this Article.

Acts 1991, No. 38, §1.

{{NOTE:  SEE ACTS 1991, NO. 38, §3, FOR SPECIAL EFFECTIVE DATE.}}

 

Art. 881.3. Record on review of sentence

In reviewing a sentence the appellate court may consider the record of the case which shall include any evidence or relevant information introduced at preliminary hearings, hearings on motions, arraignments, or sentencing proceedings, and any relevant information included in a presentence investigation report filed into the record at sentencing.  In order to preserve confidentiality, in appropriate cases, the court may order that the presentence report, or any portion thereof, be held under seal.

Acts 1991, No. 38, §1.

{{NOTE:  SEE ACTS 1991, NO. 38, §3, FOR SPECIAL EFFECTIVE DATE.}}

Art. 881.4. Action by appellate court

A.  If the appellate court finds that a sentence must be set aside on any ground, the court shall remand for resentence by the trial court.  The appellate court may give direction to the trial court concerning the proper sentence to impose.

B.  In the interest of justice, the appellate court may remand the case for resentencing before a judge other than the judge who imposed the initial sentence.

C.  If necessary to an appropriate disposition of a motion to reconsider sentence, the appellate court may remand the case to the trial court with instructions to supplement the record or to hold an evidentiary hearing.

D.  The appellate court shall not set aside a sentence for excessiveness if the record supports the sentence imposed.

Acts 1991, No. 38, §1; Acts 1995, No. 942, §1.

{{NOTE:  SEE ACTS 1991, NO. 38, §3, FOR SPECIAL EFFECTIVE DATE.}}

Art. 881.5. Correction of illegal sentence by trial court

On motion of the state or the defendant, or on its own motion, at any time, the court may correct a sentence imposed by that court which exceeds the maximum sentence authorized by law.

Acts 1991, No. 38, §1.

{{NOTE:  SEE ACTS 1991, NO. 38, §3, FOR SPECIAL EFFECTIVE DATE.}}

Art. 881.6. Reducing a sentence for substantial assistance

A.  Upon  motion of the state, the sentencing court may reduce the defendant's sentence if, after sentencing, the defendant provided substantial assistance in furtherance of the investigation or prosecution of another person.

B.  In evaluating whether the defendant has provided substantial assistance pursuant to the provisions of this Article, the sentencing court may consider the defendant's presentence or postsentence assistance in furtherance of the investigation or prosecution.

C.  If the sentencing court makes a determination to reduce the sentence to a time period which is less than the minimum sentence provided by law, that sentence shall not be imposed without the consent of the district attorney.

D.  For purposes of this Article, "sentencing" means the oral announcement of the sentence.

Acts 2011, No. 349, §1.

Art. 881.7. Memorandum of understanding;  limits on reduction of sentence for substantial assistance by a defendant

A.  Prior to any defendant receiving a reduction of sentence pursuant to Code of Criminal Procedure Article 881.6, the prosecuting attorney shall enter into a memorandum of understanding with the defendant.  Such memorandum of understanding shall be in writing.

B.  The memorandum of understanding shall be signed by the following:

(1)  The prosecuting attorney or his designee.

(2)  The defendant.

(3)  The tutor or legal guardian of the defendant, if the defendant is a minor.

(4)  The attorney representing the defendant, if the defendant is represented by counsel.

C.  The memorandum of understanding shall not be considered a grant of immunity from criminal prosecution.

D.  The memorandum of understanding shall include the entirety of the agreement between the state and the defendant and shall include the following information:

(1)  A statement that the state may move for the defendant to receive a reduction of sentence in return for the defendant providing substantial assistance in furtherance of the investigation or prosecution of another person.

(2)  A statement that the sentencing court shall examine information provided by the state in determining the nature and extent of the assistance provided by the defendant and the reduction of sentence.

(3)  A statement that the sentencing court shall not be permitted to reduce the defendant's sentence to a time period which is less than the minimum sentence provided by law without the consent of the district attorney.

(4)  A statement that the memorandum of understanding constitutes the entirety of the agreement between the state and the defendant and that the district attorney shall not recommend a reduction of  the defendant's sentence for assistance not described in the memorandum of understanding nor to any greater extent than that which is described in the memorandum of understanding.

(5)  A statement that the sentencing court may choose not to grant the motion for reduction of sentence or accept any sentencing recommendation made by the state.

E.  The memorandum of understanding shall detail the responsibilities agreed to by the defendant relating to any substantial assistance provided by the defendant in the furtherance of an investigation or prosecution of another person and any possible reduction of sentence, including but not limited to the following:

(1)  A requirement that the defendant provide complete and truthful information to all law enforcement officials related to all relevant investigations.

(2)  A statement of the substance of the proposed testimony of the witness.

F.  The memorandum of understanding shall detail the responsibilities agreed to by the state relating to the reduction of sentence, including but not limited to the following:

(1)  The circumstances under which the state will move for a reduction of sentence pursuant to Code of Criminal Procedure Article 881.6, including the nature and level of assistance the defendant is required to provide before the state will move for such reduction of sentence.

(2)  The range of the sentencing recommendation that the state agrees to make  to the sentencing court in a motion for reduction of sentence and that the district attorney shall make no other recommendation than that which is described in the memorandum of understanding.

(3)  The reduction of sentence the state will recommend for each particular instance of assistance or form of assistance when the defendant provides assistance in more than one investigation or prosecution.

(4)  The circumstances in which the district attorney shall consent to a reduction of sentence to a time period that is less than the minimum sentence provided by law.

G. When the defendant meets his obligation as described in the memorandum of understanding, the state shall move for a reduction of sentence in accordance with the memorandum of understanding.  The memorandum of understanding shall be filed into the criminal record.

Acts 2011, No. 349, §1.

Art. 882. Correction of illegal sentence;  review of illegal sentence

A.  An illegal sentence may be corrected at any time by the court that imposed the sentence or by an appellate court on review.

B.  A sentence may be reviewed as to its legality on the application of the defendant or of the state:

(1)  In an appealable case by appeal; or

(2)  In an unappealable case by writs of certiorari and prohibition.

C.  Nothing in this Article shall be construed to deprive any defendant of his right, in a proper case, to the writ of habeas corpus.

Amended by Acts 1984, No. 587, §1.

Art. 883. Concurrent and consecutive sentences

If the defendant is convicted of two or more offenses based on the same act or transaction, or constituting parts of a common scheme or plan, the terms of imprisonment shall be served concurrently unless the court expressly directs that some or all be served consecutively. Other sentences of imprisonment shall be served consecutively unless the court expressly directs that some or all of them be served concurrently. In the case of the concurrent sentence, the judge shall specify, and the court minutes shall reflect, the date from which the sentences are to run concurrently.

            Amended by Acts 1977, No. 397, §1.

Art. 883.1. Sentences concurrent with sentences of other jurisdictions

            A. The sentencing court may specify that the sentence imposed be served concurrently with a sentence imposed by a federal court or a court of any other state and that service of the concurrent terms of imprisonment in a federal correctional institution or a correctional institution of another state shall be in satisfaction of the sentence imposed in this state in the manner and to the same extent as if the defendant had been committed to the Department of Public Safety and Corrections for the term of years served in a federal correctional institution or a correctional institution of another state. When serving a concurrent sentence in a federal correctional institution or a correctional institution of another state, the defendant shall receive credit for time served as allowed under the laws of this state.

            B. Whenever sentence is imposed under the provisions of this Article, the court shall order that the defendant be remanded to the custody of the sheriff of the parish in which the defendant was convicted in the event that the terms of imprisonment to which the defendant is sentenced in the foreign jurisdiction terminates prior to the date on which the sentence imposed in this state is to terminate. If the defendant completes the term of imprisonment during his incarceration in the other jurisdiction, the department shall forward a copy of the discharge papers to the sheriff in the parish of conviction and to the appropriate authorities having physical custody of the defendant.

            C. In every case where a sentence at hard labor is imposed under the provisions of this Article, the court shall order that a certified copy of the Uniform Sentencing Commitment Order in the format authorized by the Louisiana Supreme Court be forwarded to the Department of Public Safety and Corrections. If the department needs information relating to the sentence not provided in the Uniform Sentencing Commitment Order, it may request that information from the court.

            Added by Acts 1976, No. 490, §1; Acts 1991, No. 138, §2; Acts 2017, No. 98, §1, eff. December 1, 2017.

{{NOTE: SEE ACTS 1991, NO. 138, §§4 AND 5, FOR SPECIAL EFFECTIVE DATE AND APPLICABILITY PROVISIONS.}}

Art. 883.2. Restitution to victim

            A. In all cases in which the court finds an actual pecuniary loss to a victim, or in any case where the court finds that costs have been incurred by the victim in connection with a criminal prosecution, the trial court shall order the defendant to provide restitution to the victim as a part of any sentence that the court shall impose.

            B. Additionally, if the defendant agrees as a term of a plea agreement, the court shall order the defendant to provide restitution to other victims of the defendant's criminal conduct, although those persons are not the victim of the criminal charge to which the defendant pleads. Such restitution to other persons may be ordered pursuant to Article 895 or 895.1 of this Code or any other provision of law permitting or requiring restitution to victims.

            C. The court shall order that all restitution payments be made by the defendant to the victim through the court's designated intermediary, and in no case shall the court order the defendant to deliver or send a restitution payment directly to a victim, unless the victim consents.

NOTE: Paragraph D eff. until Aug. 1, 2021. See Acts 2017, No. 260; Acts 2018, No. 137 and No. 668; and Acts 2019, No. 253.

            D. Notwithstanding any other provision of law to the contrary, if the defendant is found to be indigent and therefore unable to make restitution in full at the time of conviction, the court may order a periodic payment plan consistent with the person's financial ability.

NOTE: Paragraph D as amended by Acts 2017, No. 260, eff. Aug. 1, 2021. See Acts 2018, No. 137 and No. 668 and Acts 2019, No. 253.

            D. Notwithstanding any other provision of law to the contrary, if the defendant is found to be indigent and therefore unable to make restitution in full at the time of conviction, the court may order a periodic payment plan pursuant to the provisions of Article 875.1.

            Acts 1999, No. 783, §3, eff. Jan. 1, 2000; Acts 1999, No. 988, §1; Acts 2007, No. 22, §1; Acts 2010, No. 160, §1; Acts 2014, No. 180, §1; Acts 2017, No. 260, §1, eff. Aug. 1, 2018; Acts 2018, No. 137, §1, eff. Aug. 1, 2018; Acts 2018, No. 668, §4, eff. Aug. 1, 2018; Acts 2019, No. 253, §2.

Art. 884. Sentence of fine with imprisonment for default

NOTE: Art. 884 eff. until Aug. 1, 2021. See Acts 2017, No. 260; Acts 2018, No. 137 and No. 668; and Acts 2019, No. 253.

            If a sentence imposed includes a fine or costs, the sentence shall provide that in default of payment thereof the defendant shall be imprisoned for a specified period not to exceed one year; provided that where the maximum prison sentence which may be imposed as a penalty for a misdemeanor is six months or less, the total period of imprisonment upon conviction of the offense, including imprisonment for default in payment of a fine or costs, shall not exceed six months for that offense.

NOTE: Art. 884 as amended by Acts 2017, No. 260, eff. Aug. 1, 2021. See Acts 2018, No. 137 and No. 668 and Acts 2019, No. 253.

            A. If a sentence imposed includes a fine or costs, the sentence shall provide that in default of payment thereof the defendant shall be imprisoned for a specified period not to exceed one year; provided that where the maximum prison sentence which may be imposed as a penalty for a misdemeanor is six months or less, the total period of imprisonment upon conviction of the offense, including imprisonment for default in payment of a fine or costs, shall not exceed six months for that offense.

            B. The provisions of this Article do not apply if the court has determined, pursuant to the provisions of Article 875.1, that payment in full of the aggregate amount of all financial obligations imposed upon the defendant would cause substantial financial hardship to the defendant or his dependents. In such cases, the provisions of Article 875.1 shall apply.

            Amended by Acts 1968, Ex.Sess., No. 12, §1, emerg. eff. Dec. 27, 1968 at 11:00 A.M; Acts 2017, No. 260, §1, eff. Aug. 1, 2018; Acts 2018, No. 137, §1, eff. Aug. 1, 2018; Acts 2018, No. 668, §4, eff. Aug. 1, 2018; Acts 2019, No. 253, §2.

Art. 885. Release on payment of fine and costs

A defendant who has been imprisoned for default in the payment of a fine, or fine and costs, under a sentence imposed pursuant to Article 884, may, at any time before expiration of the term of imprisonment, obtain his release by paying to his custodian all of the costs imposed and a sum of money that bears the same proportion to the imposed fine as the term of alternate imprisonment yet to run bears to the whole of such term of imprisonment.

Amended by Acts 1970, No. 293, §1.

Art. 885.1. Suspension of driving privileges;  failure to pay criminal fines

            A. When a fine is levied against a person convicted of any criminal offense, including any violation of the Louisiana Highway Regulatory Act or any municipal or parish ordinance regulating traffic, and the court grants the defendant an extension of time to pay the fine, if at the expiration of the extended period granted by the court, the defendant shows that he is financially unable to pay the fine, the judge of the court having jurisdiction shall grant the person an extension of time, not to exceed one hundred eighty days, in which to pay the fine, or offer the person, in lieu of paying the fine, the alternative of performing community service as set by the judge.

            B. If, at the expiration of the one-hundred-eighty-day period granted by the judge pursuant to Paragraph A of this Article, the judge determines that the defendant has either willfully not paid the fine or has not performed the community service, the judge may do either of the following:

            (1) For any offense that involves the operation of any motor vehicle, aircraft, watercraft, or other means of conveyance as a necessary element of proof in the commission of the offense, order the person's driver's license to be surrendered to the sheriff or official of the court collecting fines, and the sheriff or official of the court designated to collect fines shall forward the license to the Department of Public Safety and Corrections.

            (2) Grant the person an extension of time to either pay the fine or perform the community service.

            C. If the person's license is surrendered pursuant to Subparagraph (B)(1) of this Article, upon receipt of the defendant's surrendered driver's license, the department shall suspend the driver's license of the defendant. The suspension shall begin when the department receives written notification from the court, and the department shall send immediate written notification to the defendant informing him of the suspension of driving privileges.

            D. The department shall not reinstate, return, reissue, or renew a driver's license in its possession pursuant to this Article until payment of the fine and any additional administrative cost, fee, or penalty required by the judge having the jurisdiction and any other cost, fee, or penalty required by the department in accordance with R.S. 32:414(H) or other applicable cost, fee, or penalty provision.

            E. Notwithstanding any provision of law to the contrary, if the person against whom the fine is levied is financially unable to pay the fine, the provisions of this Article shall not apply and the judge of the court shall not order that the person's driver's license be surrendered for failure to pay such fine, unless the court determines that the defendant is financially able but has willfully refused to pay the fine, or to perform the community service ordered as an alternative to the fine pursuant to the provisions of this Article.

            Acts 2003, No. 364, §1; Acts 2017, No. 260, §1, eff. Aug. 1, 2018; Acts 2018, No. 137, §1, eff. Aug. 1, 2018; Acts 2018, No. 668, §4, eff. Aug. 1, 2018; Acts 2019, No. 111, §1; Acts 2019, No. 253, §1.

Art. 886. Enforcement of fine by civil process;  offset of tax refund

A.  In the event of nonpayment of a fine, nonpayment of restitution to the victim, or nonpayment of a fine and costs, within sixty days after the sentence was imposed, and if no appeal is pending, the court which imposed the sentence may sign a judgment against the defendant in a sum equal to the fine or restitution plus judicial interest to begin sixty days after the sentence was imposed plus all costs of the criminal proceeding and subsequent proceedings necessary to enforce the judgment in either civil or criminal court, or both.  Collection of the judgment may be enforced in either criminal or civil court, or both, in the same manner as a money judgment in a civil case.  In addition, particular courts may provide by court rule for enforcement by the filing of an offset claim against the defendant, in accordance with R.S. 47:299.1 through 299.20.

B.  The provisions of Paragraph A of this Article shall apply to all fines and costs due and owing, regardless of whether they become due and owing prior to September 6, 1991.

Acts 1989, No. 191, §2; Acts 1991, No. 85, §1; Acts 1999, No. 140, §1; Acts 1999, No. 783, §3, eff. Jan. 1, 2000.

Art. 886.1. Judgment for fines and costs declared executory;  required notice

If a civil judgment is signed in accordance with Article 886, the judgment shall be executory upon rendition by the court provided the defendant was notified at the time of sentencing of the possible rendition of a civil judgment in the event of his failure to pay the fine and costs.  In all other cases, the judgment shall be executory immediately upon service of the notice of judgment upon the defendant in accordance with Code of Civil Procedure Article 1913.

Acts 1991, No. 85, §1.

Art. 887. Defendant's liability for costs;  suspension of costs;  no advance costs

            A. A defendant who is convicted of an offense or is the person owing a duty of support in a support proceeding shall be liable for all costs of the prosecution or proceeding, whether or not costs are assessed by the court, and such costs are recoverable by the party or parties who incurred the expense. However, such defendant or person shall not be liable for costs if acquitted or if the prosecution or proceeding is dismissed. In addition, any judge of a district court, parish court, city court, traffic court, juvenile court, family court, or magistrate of a mayor's court within the state shall be authorized to suspend court costs.

            B. All processes of the court shall issue without the payment of advance costs.

            C. In addition to the costs provided in Paragraph A of this Article, a person convicted of a violation of R.S. 14:98 or 98.6, or any municipal or parochial ordinance defining the offense of operating a motor vehicle, aircraft, watercraft, vessel, or other motorized means of conveyance under the influence of alcohol or drugs, who was subjected to a blood, breath, or urine analysis for alcohol or any controlled dangerous substance listed in R.S. 40:964, Schedule I, II, III, IV, or V, shall be assessed an additional one hundred twenty-five dollars as special costs. Such costs shall be paid in the following manner: seventy-five dollars to the governing authority owning the instrument used to perform the analysis, and fifty dollars to the governing authority whose agency performed the analysis. If the office of state police performed or participated in a blood, breath, or urine analysis for which these costs are assessed, that portion of the costs applicable to the office of state police shall be forwarded to the applied technology unit within the office of state police and forwarded for disposition in accordance with R.S. 40:1379.7. In the event the person is unable to pay the fine when assessed, the court may allow payment within certain time limits, based on the person's ability to pay such costs.

            D. In addition to the costs provided in Paragraphs A and C, a person convicted of a violation of R.S. 14:98, R.S. 14:98.1, or of any municipal or parochial ordinance defining the offense of operating a motor vehicle while under the influence of alcohol or drugs, shall be assessed an additional fifty dollars as special costs to be used to defray expenses of administering conditions of probation or of incarceration. If the offender is incarcerated, such costs shall be paid to the sheriff or other custodian of the facility in which the offender is incarcerated. If the offender is placed on probation as provided in R.S. 14:98(B) or (C) or R.S. 14:98.1(D) or (E), the court may order the apportionment and payment of all or a part of such costs to the agencies or persons responsible for administering the prescribed substance abuse program, driver improvement program, or community service activities. In addition, the person convicted of a violation of R.S. 14:98, R.S. 14:98.1, or of any such municipal or parochial ordinance shall be assessed costs of the witness fee provided by R.S. 15:255.

            E. Repealed by Acts 2009, No. 440, §2.

            F.(1) In addition to the costs provided in Paragraphs A, C, D, and E of this Article, a person convicted of a felony, a misdemeanor, or ordinance of any local government, including a traffic felony, a traffic misdemeanor, or a local traffic violation, shall be assessed an additional three dollars as a special court cost, provided that such additional cost shall be one dollar in mayor's courts in municipalities with a population of two thousand or less. Such special costs shall be imposed by all courts, including mayor's courts and magistrate courts, and shall be used for implementation of the master plan for the development of a trial court case management information system and for the fast-tracked prototype development of the criminal disposition component thereof in order to define and meet the needs of clerks of court, trial court judges, law enforcement and corrections officials, the supreme court, the legislature, and the general public, and for the implementation of an integrated juvenile justice information system for use in all courts exercising juvenile court jurisdiction. The proceeds of the special cost shall be deposited in the state treasury monthly on or before the tenth day of each calendar month. After compliance with the requirements of Article VII, Section 9(B) of the Constitution of Louisiana, relative to the Bond Security and Redemption Fund, and prior to monies being placed in the state general fund, an amount equal to that deposited in the state treasury, as required above, shall be credited to the special fund hereby created in the state treasury to be known as the Trial Court Case Management Information Fund. The disbursement of the proceeds from the fund shall be made on the warrant of the judicial administrator of the supreme court drawn on the state treasury. The monies in this fund shall be used solely for the purposes identified in this Paragraph, including necessary and associated administrative expenses. All unexpended and unencumbered monies in this fund at the end of the fiscal year shall remain in such fund. All monies in this fund shall be invested by the state treasurer in the same manner as monies in the general fund with interest earned on the investment of these monies credited to this fund following compliance with the requirements of Article VII, Section 9(B), relative to the Bond Security and Redemption Fund.

            (2) In Jefferson Parish, in addition to the costs in Paragraphs A, C, D, and E, a person convicted of an offense against the state of Louisiana shall be assessed a special court cost in the following amounts: in the case of a misdemeanor, an additional twenty-five dollars, and in the case of a felony, an additional fifty dollars. The amount so assessed shall be collected on behalf of the clerk of court's office, in the manner that fines are collected in criminal cases. The funds shall be transmitted to the clerk of court's office to be used by the clerk in his discretion to defray the expenses of his office.

            (3) In Natchitoches Parish, in addition to the costs in Paragraphs A, C, D, E, G, and H and Subparagraph (1) of this Paragraph, a person convicted of an offense against the state of Louisiana, including a plea of guilty or nolo contendere, shall be assessed a special court cost in the amount of ten dollars in any prosecution initiated by the district attorney. Such special costs shall be imposed by the Tenth Judicial District Court and the City Court of Natchitoches. The amount so assessed shall be collected on behalf of the parish sheriff's office, in the manner that fines are collected in criminal cases. The funds shall be paid into the treasury of the parish and deposited into the Criminal Court Fund pursuant to R.S. 15:571.11, which statute shall govern the disposition of the additional court costs.

            G. In addition to the costs provided in Paragraphs A, C, D, E, and F, a person convicted of a violation of the Uniform Controlled Dangerous Substances Law may be assessed an additional one hundred dollars as special costs of court. Such special costs shall be imposed by all courts and shall be used for the development or maintenance of Drug Abuse Resistance Education (D.A.R.E.) programs. The amount so assessed shall be collected on behalf of the parish sheriff's office, to be distributed among agencies providing the D.A.R.E. programs based upon the number of programs each agency offers within the public and private educational systems of the parish.

            H. In addition to the costs provided in Paragraphs A, C, D, E, F, and G, a person convicted of a felony, a misdemeanor, or ordinance of any local government may be assessed additional reasonable costs to cover the costs expended by the sheriff, marshal, constable, or municipal police in the execution of a bench warrant, or a fugitive warrant, or both. An itemized statement of expenses shall be prepared and submitted for review and assessment by the court at the time of sentencing. Such costs shall be paid to the sheriff, marshal, constable, or municipal police as reimbursement of expenses incurred in the execution of such warrant.

            Amended by Acts 1994, 3rd Ex. Sess., No. 109, §1; Acts 1995, No. 1064, §1; Acts 1995, No. 1276, §1; Acts 1997, No. 1296, §1, eff. July 15, 1997; Acts 1999, No. 705, §1; Acts 1999, No. 1255, §1; Acts 2001, No. 1200, §1; Acts 2009, No. 440, §2; Acts 2011, No. 23, §1; Acts 2018, No. 198, §1.

Art. 888. Costs and fines;  payment

NOTE: Art. 888 eff. until Aug. 1, 2021. See Acts 2017, No. 260; Acts 2018, No. 137 and No. 668; and Acts 2019, No. 253.

            Costs and any fine imposed shall be payable immediately; provided, however, that in cases involving the violation of any traffic law or ordinance, the court having jurisdiction may grant the defendant five judicial days after rendition of judgment to pay any costs and any fine imposed.

NOTE: Art. 888 as amended by Acts 2017, No. 260, eff. Aug. 1, 2021. See Acts 2018, No. 137 and No. 668 and Acts 2019, No. 253.

            Costs and any fine imposed shall be payable immediately except as provided in Article 875.1 relative to the determination of the defendant's ability to pay; provided, however, that in cases involving the violation of any traffic law or ordinance, the court having jurisdiction may grant the defendant five judicial days after rendition of judgment to pay any costs and any fine imposed.

            Amended by Acts 1968, No. 368, §1; Acts 2017, No. 260, §1, eff. Aug. 1, 2018; Acts 2018, No. 137, §1, eff. Aug. 1, 2018; Acts 2018, No. 668, §4, eff. Aug. 1, 2018; Acts 2019, No. 253, §2.

Art. 889. Collection and disposition of fines, costs, and forfeitures

The collection and disposition of fines, costs, and forfeitures shall be as provided by law.

Art. 890. Method of service of sentence of imprisonment;  labor and confinement;  workday release program

A.  A sentence of imprisonment in the state penitentiary shall be served in conformity with the applicable provisions of Title 15 of the Louisiana Revised Statutes of 1950 that govern the state penitentiary.

B.  Except in misdemeanor cases, any other sentence of imprisonment subjects the defendant to confinement, and to labor unless otherwise specified.

C.  In all misdemeanor cases in which a sentence of imprisonment is imposed and the sentencing court has ordered the defendant to report to the sheriff for participation in a court-approved workday release program during the term of imprisonment, the defendant shall be subjected to confinement and costs as provided for in R.S. 15:708.

Acts 1986, No. 704, §1.

Art. 890.1. Waiver of minimum mandatory sentences;  procedure;  exceptions

            A. Notwithstanding any other provision of law to the contrary, if a felony or misdemeanor offense specifies a sentence with a minimum term of confinement or a minimum fine, or that the sentence shall be served without benefit of parole, probation, or suspension of sentence, the court, upon conviction, in sentencing the offender shall impose the sentence as provided in the penalty provisions for that offense, unless one of the following occurs:

            (1) The defendant pled guilty pursuant to a negotiated plea agreement with the prosecution and the court, which specifies that the sentence shall be served with benefit of parole, probation, or suspension of sentence or specifies a reduced fine or term of confinement.

            (2) In cases resulting in trial, the prosecution, the defendant, and the court entered into a post-conviction agreement, which specifies that the sentence shall be served with benefit of parole, probation, or suspension of sentence or specifies a reduced fine or term of confinement.

            B. If such agreements are entered into between the prosecution and the defendant, the court, at sentencing, shall not impose a lesser term of imprisonment, lesser fine, or lesser period of sentence served without benefit of parole, probation, or suspension of sentence than that expressly provided for under the terms of the plea or post-conviction agreement.

            C. No plea or post-conviction agreement shall provide parole eligibility at a time earlier than that provided in R.S. 15:574.4.

            D. The provisions of this Article shall not apply to a sex offense as defined in R.S. 15:541 or to any of the following crimes of violence:

            (1) R.S. 14:28.1 (Solicitation for murder).

            (2) R.S. 14:30 (First degree murder).

            (3) R.S. 14:30.1 (Second degree murder).

            (4) R.S. 14:31 (Manslaughter).

            (5) R.S. 14:34.6 (Disarming of a peace officer).

            (6) R.S. 14:34.7 (Aggravated second degree battery).

            (7) R.S. 14:37.1 (Assault by drive-by shooting).

            (8) R.S. 14:37.4 (Aggravated assault with a firearm).

            (9) R.S. 14:42 (Aggravated or first degree rape).

            (10) R.S. 14:42.1 (Forcible or second degree rape).

            (11) R.S. 14:43 (Simple or third degree rape).

            (12) R.S. 14:43.1 (Sexual battery).

            (13) R.S.14:43.2 (Second degree sexual battery).

            (14) R.S. 14:43.5 (Intentional exposure to AIDS virus).

            (15) R.S. 14:44 (Aggravated kidnapping).

            (16) R.S. 14:44.1 (Second degree kidnapping).

            (17) R.S. 14:46.2 (Human trafficking).

            (18) R.S.14:46.3 (Trafficking of children for sexual purposes).

            (19) R.S.14:51 (Aggravated arson).

            (20) R.S. 14:62.8 (Home invasion).

            (21) R.S. 14:64 (Armed robbery).

            (22) R.S. 14:64.4 (Second degree robbery).

            (23) R.S. 14:64.3 (Armed robbery; use of firearm).

            (24) R.S. 14:64.2 (Carjacking).

            (25) R.S. 14:78.1 (Aggravated incest).

            (26) R.S. 14:93.2.3 (Second degree cruelty to juveniles).

            (27) R.S.14:128.1 (Terrorism).

            (28) R.S. 14:34 (Aggravated battery).

            (29) R.S. 14:37 (Aggravated assault).

            (30) R.S. 14:34.1 (Second Degree Battery)

            (31) R.S. 14:35.3 (Domestic Abuse Battery)

            (32) R.S. 14:40.2 (Stalking)

            (33) R.S. 14:64.1 (First Degree Robbery)

            (34) R.S. 14:32.5 (Feticide)

            E. At the time the sentence is imposed pursuant to this Article, the Uniform Commitment Sentencing Order shall specify that the sentence is imposed pursuant to the provisions of this Article.

            Acts 2012, No. 160, §1, eff. May 17, 2012; Acts 2014, No. 634, §1; Acts 2015, No. 184, §6.

 

Art. 890.2. Fines for individual defendants

A.  When a defendant has been convicted of a felony, and upon a determination that a defendant has the ability and resources available to pay an additional fine and that such a fine would not unduly burden the defendant's dependents, the court may impose as an additional fine or as a component of a fine the expected costs to the state of any imprisonment ordered by the court and prescribe the manner in which the fine shall be enforced and paid.

B.  The additional fine or component of the fine may be imposed contingent upon the defendant's ability to pay the fine while incarcerated from any future sources of income the defendant may receive while incarcerated.

C.  The Department of Public Safety and Corrections may determine the amount due the state in cases where the defendant is confined in a penal or correctional institution under the supervision of the department and render statements thereof, and such sworn statements shall be considered prima facie evidence of the amount due.  If the defendant is committed to the department and confined in a parish jail or institution as provided for in R.S. 15:824(B), the amount of the additional fine or component of the fine shall be equal to the amount paid by the department to the parish sheriff or governing authority of those parishes in which the governing authority operates the parish jail, for keeping and feeding the individual in the parish jail.

D.  The amount of reimbursement under this Article shall not be in excess of the per capita cost of care for maintaining inmates in the state correctional facility in which the inmate is housed.  The funds collected from the fines imposed pursuant to this Article shall be distributed to the entity that expended the funds.  However, ten percent of the funds shall go to the Crime Victims' Reparation Fund as provided in R.S. 46:1816.

Acts 1997, No. 751, §1.

Art. 890.3. Sentencing for crimes of violence

            A. Except as provided in Paragraph C of this Article, when a defendant is sentenced for any offense, or the attempt to commit any offense, defined or enumerated as a crime of violence in R.S. 14:2(B), the district attorney may make a written recommendation to the court that the offense should not be designated as a crime of violence only for the following purposes:

            (1) The defendant's eligibility for suspension or deferral of sentence pursuant to Article 893.

            (2) The defendant's eligibility for participation in a drug division probation program pursuant to R.S. 13:5304.

            B. In the absence of a written recommendation by the district attorney as provided in Paragraph A of this Article, the offense shall be designated as a crime of violence as a matter of law.

            C. The following crimes of violence enumerated in R.S. 14:2(B) shall always be designated by the court in the minutes as a crime of violence:

            (1) Solicitation for murder.

            (2) First degree murder.

            (3) Second degree murder.

            (4) Manslaughter.

            (5) Aggravated or first degree rape.

            (6) Forcible or second degree rape.

            (7) Simple or third degree rape.

            (8) Sexual battery.

            (9) Second degree sexual battery.

            (10) Intentional exposure to AIDS virus.

            (11) Aggravated kidnapping.

            (12) Second degree kidnapping.

            (13) Aggravated arson.

            (14) Armed robbery.

            (15) Assault by drive-by shooting.

            (16) Carjacking.

            (17) Terrorism.

            (18) Aggravated second degree battery.

            (19) Aggravated assault with a firearm.

            (20) Armed robbery; use of firearm; additional penalty.

            (21) Second degree robbery.

            (22) Disarming of a peace officer.

            (23) Second degree cruelty to juveniles.

            (24) Aggravated crime against nature.

            (25) Trafficking of children for sexual purposes.

            (26) Human trafficking.

            (27) Home invasion.

            Acts 2016, No. 509, §1; Acts 2017, No. 196, §1.

 

Art. 891. Forfeiture of weapons

A.  For purposes of this Article, a firearm or other dangerous weapon either used in the commission of a felony offense or the use of which constitutes an element of a felony offense may be declared to be crime-related contraband which may be seized by a law enforcement officer in the course of an arrest or issuance of summons or may be seized by order of court pursuant to other provisions of law.  The district attorney of the parish where the arrest or seizure occurred may petition the district court to forfeit to the seizing agency an item or thing seized, or may petition the court for seizure, upon a showing that the item or thing seized or to be seized  constitutes crime-related contraband.

B.  Forfeiture under this Article may be initiated within sixty days of receipt or publication of notice of seizure.  The law enforcement agency effecting the seizure shall send notice to the registered owner if known and possessor of the item or thing by certified mail, return receipt requested, at the address provided to the law enforcement agency by any known or believed registered owner or possessor; and if returned unclaimed, notice shall be by an advertisement placed for publication by the seizing agency in the official journal of the parish of the place of seizure.

C.  The notice provided for in Paragraph B must state or contain all of the following:

(1)  A description of the item or thing to be forfeited.

(2)  The name of the registered or believed owner, if any.

(3) A statement regarding the nature and circumstances surrounding the forfeiture.

(4) That the seizing law enforcement agency seeks to forfeit the described item or thing.

(5)  That a claim to the item must be made within sixty days from date of receipt or publication of notice in order to interrupt or prevent the forfeiture.

D.  The claimant of the item or thing to be forfeited must file a written affidavit with the court wherein the petition was filed within the time period provided for in Paragraph C of this Article.  The affidavit shall allege or establish the owner's or possessor's lack of knowledge or lack of duty to know that the thing or item was used or intended for use in the commission of an offense.  The claimant must also be legally entitled to the ownership or possession of the thing or item and must establish, to the satisfac­tion of the court, proof of ownership or dominion.  If no legitimate claim is made within sixty days, the thing or item shall be declared crime-related contraband by the court and all rights, title, and interest to the thing or item seized shall be transferred to and vested with the seizing law enforcement agency making the seizure.  Discretion as to the disposition of crime-related contraband which is a firearm or dangerous weapon shall rest with the court.

E. In addition to ordering the forfeiture of a firearm or dangerous weapon as crime-related contraband as otherwise provided in this Article or by any other provision of law, when a court sentences a defendant, it may order the forfeiture of any weapon used in connection with the offense or found in the possession or under the immediate control of the defendant at the time of the arrest.  The court may provide for the destruction, sale, or other disposition of the weapons forfeited.

Acts 1994, 3rd Ex. Sess., No. 21, §1.

 

Art. 892. Post-sentence statement by sheriff;  accompanying documents

            A. The sheriff shall prepare a statement indicating the amount of time a defendant has spent in custody prior to conviction when the defendant has been convicted of a felony and is committed to the Department of Public Safety and Corrections, has been convicted of a misdemeanor and sentenced for a term of one year or more to any penal institution, or has been ordered committed to any mental institution or mental hospital. The sheriff shall retain a copy of the statement and submit the original to the sheriff of the parish to which the defendant is sentenced.

            B.(1) When a sheriff's statement is required pursuant to Paragraph A of this Article, the clerk of court shall also prepare the following documents:

            (a) A copy of the indictment under which the defendant was convicted.

            (b) A copy of the Uniform Sentencing Commitment Order in the format authorized by the Louisiana Supreme Court which shall include the name and address of the judge, the district attorney, and the defense attorney who participated in the sentencing trial. If the department needs information relating to the sentence not provided in the Uniform Sentencing Commitment Order, it may request that information from the court.

            (2) The clerk shall retain a copy of the statement and documents and send the original to the sheriff of the parish to which the defendant has been sentenced, where they shall be preserved. The documents, or copies thereof, shall be made available to the governor, the pardon board, and the parole committee.

            C. All statements and documents required by this Article shall physically accompany any defendant when said defendant is transferred to a penal institution or a mental institution or mental hospital. Said documents and statements shall be tendered to the officer in charge of the institution at the time that the defendant is presented for admittance thereto.

            D. Failure to comply with the provisions of this Article shall not affect the validity of a prosecution, conviction, or sentence.

            Amended by Acts 1975, No. 731, §1; Acts 1977, No. 608, §1; Acts 1978, No. 179, §1; Acts 1982, No. 543, §1; Acts 1987, No. 98, §1; Acts 2011, No. 186, §1; Acts 2017, No. 36, §1; Acts 2017, No. 98, §1, eff. December 1, 2017.

Art. 892.1. Driver improvement programs

A.  Whenever, in a misdemeanor case, a person is convicted of violating any law of this state that regulates traffic or any parish or municipal ordinance that regulates traffic, or when a child is decreed by a court to be a traffic violator, regardless of any sentence imposed, the court imposing sentence may order the person or child to attend and participate in a driver education, training, or improvement program approved by the court or the violator may choose a program approved by the Department of Public Safety and Corrections, office of motor vehicles as provided and pursuant to the conditions in R.S. 32:402.2.

B.  Notwithstanding the provision of any other law to the contrary, upon conviction for the first time only of a misdemeanor offense under Title 32 of the Louisiana Revised Statutes of 1950 that regulates traffic or of any similar parish or municipal ordinance that regulates traffic, the court may suspend the sentence for such offense and order the defendant to attend, at his cost, a driver education, training, or improvement program as provided for in Paragraph A of this Article.

C.  Upon completion by the defendant of the driver program, the court may set the conviction aside and dismiss the prosecution.

D.  All driver improvement courses under this Article shall include instruction on railroad and highway grade crossing safety.

E.  The court in its discretion may defer sentencing and allow the defendant ninety days to present a certificate of course completion as evidence that, subsequent to the alleged act, the person has successfully completed a driver education, training, or improvement course as provided in Paragraph A of this Article when all of the following conditions are met:

(1)  The person, except as provided in Paragraph G of this Article, enters a plea in person or in writing of nolo contendere or guilty and presents to the court an oral request or a written request, in person or by mail postmarked on or before the appearance date on the citation, to take a driving course.

(2)  The court enters judgment on the defendant's plea of nolo contendere or guilty at the time the plea is made, but defers the imposition of the whole or any part of the sentence for ninety days.

(3)  The defendant has a valid driver's license or permit.

(4)  The defendant's driving record as maintained by the Department of Public Safety and Corrections does not indicate successful completion of a driver's education, training, or improvement course under this Article within the two years immediately preceding the date of the alleged offense.

(5)  The defendant files an affidavit with the court stating that he is not in the process of taking a course under this Article and he has not completed a course under this Article that is not yet reflected on his driving record.

(6)  The offense charged is for a misdemeanor offense under Title 32 of the Louisiana Revised Statutes of 1950, except when the offense involves speeding twenty-five miles per hour or more over the posted speed limit at the place where the alleged offense occurred.

F.  A written request to take a driving course under Subparagraph E(1) of this Article is timely if it is postmarked on or before the appearance date on the citation.

G.  A court shall not require a minor who is sixteen years of age or younger to enter a plea of nolo contendere or guilty under Subparagraph E(1) of this Article.

H.(1)  When a person complies with Paragraph E of this Article and a certificate of course completion is accepted by the court, the court shall set the conviction aside and dismiss the charge, but the court may only dismiss one charge for completion of each course.

(2)  When a charge is dismissed under this Paragraph, the charge shall not be part of the person's driving record or used for any purpose; however, the court shall report that the person has successfully completed the driving course and the date of completion to the Department of Public Safety and Corrections for inclusion in his driving record.  The report shall indicate that the course was taken under the provisions of this Article to determine eligibility to take a subsequent course under such provisions.

(3)  No insurance company shall increase the premium or cancel an insured's policy merely because of an offense dismissed under this Article or because the insured completed a driving course under this Article.

I.  The court may require the person requesting a driving course to pay a fee set by the court at an amount that does not exceed ten dollars to cover the cost of administering this Article.  Fees collected by a municipal court shall be deposited in the municipal treasury.  Fees collected by other courts shall be deposited in the criminal court fund of the parish in which the court is located.  If the person requesting a driving course does not take the course, he is not entitled to a refund of the court fee.  In addition to the cost of the driving course, the person shall pay any fines and costs for the driving offense.

J.  The authority vested in courts by this Article is in addition to any authority granted by other laws with respect to persons convicted of traffic violations and children decreed to be traffic violators.

Acts 1972, No. 224, §1; Acts 1985, No. 150, §1; Acts 1990, No. 834, §1; Acts 1991, No. 485, §§1 and 2; Acts 1993, No. 225, §2, eff. July 1, 1993; Acts 1995, No. 1091, §1; Acts 1996, 1st Ex. Sess., No. 93, §1; Acts 1997, No. 1336, §1.

Art. 892.2. Notice of controlled dangerous substance conviction;  licensing authority

When a person is convicted of violating any felony provision of the Uniform Controlled Dangerous Substances Law, the court imposing sentence shall determine if the defendant possesses a license to practice a trade, occupation, or profession in this state and, if so, the court shall cause notice of the conviction to be forwarded to the appropriate licensing authority.

Acts 1989, No. 81, §1.

Art. 892.3. Transfer of foreign nationals or citizens;  treaty

When a treaty is in effect between the United States and a foreign country providing for the transfer of a convicted offender who is a citizen or national of the foreign country to the foreign country or the transfer of a citizen of the United States convicted as an offender in the foreign country to the United States, the governor is authorized, subject to the terms of such treaty, to act on behalf of the state and to consent to the transfer of such convicted offenders under the provisions of Article IV, Section 5(A) of the Constitution of Louisiana.

Acts 1990, No. 514, §1, eff. July 18, 1990.

Chapter 2. Suspended Sentence and Probation

Art. 893. Suspension and deferral of sentence and probation in felony cases

            A.(1)(a) When it appears that the best interest of the public and of the defendant will be served, the court, after a first, second, or third conviction of a noncapital felony, may suspend, in whole or in part, the imposition or execution of either or both sentences, where suspension is allowed under the law, and in either or both cases place the defendant on probation under the supervision of the division of probation and parole. The court shall not suspend the sentence of a second or third conviction of R.S. 14:73.5. Except as provided in Paragraph G of this Article, the period of probation shall be specified and shall not be more than three years, except as provided by Paragraph H of this Article.

            (b) The court shall not suspend the sentence of a second or third conviction of R.S. 14:81.1 or 81.2. If the court suspends the sentence of a first conviction of R.S. 14:81.1 or 81.2, the period of probation shall be specified and shall not be more than five years.

            (2) The court shall not suspend the sentence of a conviction for an offense that is designated in the court minutes as a crime of violence pursuant to Article 890.3, except a first conviction for an offense with a maximum prison sentence of ten years or less that was not committed against a family member or household member as defined by R.S. 14:35.3, or dating partner as defined by R.S. 46:2151. The period of probation shall be specified and shall not be more than five years.

            (3) The suspended sentence shall be regarded as a sentence for the purpose of granting or denying a new trial or appeal.

            (4) Supervised release as provided for by Chapter 3-E of Title 15 of the Louisiana Revised Statutes of 1950 shall not be considered probation and shall not be limited by the five-year or three-year period for probation provided for by the provisions of this Paragraph.

            B.(1) Notwithstanding any other provision of law to the contrary, when it appears that the best interest of the public and of the defendant will be served, the court, after a fourth conviction of a noncapital felony or after a third or fourth conviction of operating a vehicle while intoxicated pursuant to R.S. 14:98, may suspend, in whole or in part, the imposition or execution of the sentence when the defendant was not offered such alternatives prior to his fourth conviction of operating a vehicle while intoxicated and the following conditions exist:

            (a) The district attorney consents to the suspension of the sentence.

            (b) The court orders the defendant to do any of the following:

            (i) Enter and complete a program provided by the drug division of the district court pursuant to R.S. 13:5301 et seq.

            (ii) Enter and complete an established driving while intoxicated court or sobriety court program.

            (iii) Enter and complete a mental health court program established pursuant to R.S. 13:5351 et seq.

            (iv) Enter and complete a Veterans Court program established pursuant to R.S. 13:5361 et seq.

            (v) Enter and complete a reentry court program established pursuant to R.S. 13:5401.

            (vi) Reside for a minimum period of one year in a facility which conforms to the Judicial Agency Referral Residential Facility Regulatory Act, R.S. 40:2851 et seq.

            (vii) Enter and complete the Swift and Certain Probation Pilot Program established pursuant to R.S. 13:5371 et seq.

            (2) When suspension is allowed under this Paragraph, the defendant shall be placed on probation under the supervision of the division of probation and parole. The period of probation shall be specified and shall not be more than three years, except as provided in Paragraph G of this Article. The suspended sentence shall be regarded as a sentence for the purpose of granting or denying a new trial or appeal.

            C. If the sentence consists of both a fine and imprisonment, the court may impose the fine and suspend the sentence or place the defendant on probation as to the imprisonment.

            D. Except as otherwise provided by law, the court shall not suspend a felony sentence after the defendant has begun to serve the sentence.

            E.(1)(a) 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 under the conditions set forth in this Paragraph. When a conviction is entered under this Paragraph, the court may defer the imposition of sentence and place the defendant on probation under the supervision of the division of probation and parole.

            (b) The court shall not defer a sentence under this provision for an offense or an attempted offense that is designated in the court minutes as a crime of violence pursuant to Article 890.3 or that is defined as a sex offense by R.S. 15:541, involving a child under the age of seventeen years or for a violation of the Uniform Controlled Dangerous Substances Law that is punishable by a term of imprisonment of more than five years or for a violation of R.S. 40:966(A), 967(A), 968(A), 969(A), or 970(A).

            (2) Upon motion of the defendant, 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. The dismissal of the prosecution shall have the same effect as acquittal, except that the conviction may be considered as a first offense and provide the basis for subsequent prosecution of the party as a habitual offender except as provided in R.S. 15:529.1(C)(3). The conviction may be considered as a prior offense for purposes of any other law or laws relating to cumulation of offenses. Dismissal under this Paragraph shall occur only once with respect to any person.

            (3)(a) When a case is accepted into a drug court division probation program pursuant to the provisions of R.S. 13:5304 and at the conclusion of the probationary period the court finds that the defendant has successfully completed all conditions of probation, the court with the concurrence of the district attorney may set aside the conviction and dismiss prosecution, whether the defendant's sentence was suspended under Paragraph A of this Article or deferred under Subparagraph (1) of this Paragraph. The dismissal of prosecution shall have the same effect as an acquittal, except that the conviction may be considered as a first offense and provide the basis for subsequent prosecution of the party as a habitual offender except as provided in R.S. 15:529.1(C)(3). The conviction may be considered as a prior offense for purposes of any other law or laws relating to cumulation of offenses.

            (b) The court may extend the provisions of this Paragraph to any person who has previously successfully completed a drug court program and satisfactorily completed all other conditions of probation.

            (c) Dismissal under this Paragraph shall have the same effect as an acquittal for purposes of expungement under the provisions of Title XXXIV of this Code and may occur only once with respect to any person.

            (4) When a defendant, who has been committed to the custody of the Department of Public Safety and Corrections to serve a sentence in the intensive incarceration program pursuant to the provisions of Article 895(B)(3), has successfully completed the intensive incarceration program as well as successfully completed all other conditions of parole or probation, and if the defendant is otherwise eligible, the court with the concurrence of the district attorney may set aside the conviction and dismiss prosecution, whether the defendant's sentence was suspended under Paragraph A of this Article or deferred under Subparagraph (1) of this Paragraph. The dismissal of prosecution shall have the same effect as an acquittal, except that the conviction may be considered as a first offense and provide the basis for subsequent prosecution of the party as a habitual offender except as provided in R.S. 15:529.1(C)(3). The conviction may be considered as a prior offense for purposes of any other law or laws relating to cumulation of offenses. Dismissal under this Subparagraph shall have the same effect as an acquittal for purposes of expungement under the provisions of Title XXXIV of this Code and may occur only once with respect to any person.

            F. Nothing contained herein shall be construed as being a basis for destruction of records of the arrest and prosecution of any person convicted of a felony.

            G. If the court, with the consent of the district attorney, orders a defendant to enter and complete a program provided by the drug division of the district court pursuant to R.S. 13:5301, an established driving while intoxicated court or sobriety court program, a mental health court program established pursuant to R.S. 13:5351 et seq., a Veterans Court program established pursuant to R.S. 13:5361 et seq., a reentry court established pursuant to R.S. 13:5401, or the Swift and Certain Probation Pilot Program established pursuant to R.S. 13:5371, the court may place the defendant on probation for a period of not more than eight years if the court determines that successful completion of the program may require that period of probation to exceed the three-year limit. The court may not extend the duration of the probation period solely due to unpaid fees and fines. The period of probation as initially fixed or as extended shall not exceed eight years.

            H.(1) If a defendant is placed on supervised probation, the division of probation and parole shall submit to the court a compliance report when requested by the court, or when the division of probation and parole deems it necessary to have the court make a determination with respect to "earned compliance credits", modification of terms or conditions of probation, termination of probation, revocation of probation, or other purpose proper under any provision of law.

            (2) For purposes of this Paragraph:

            (a) "Compliance" means the full completion of the terms and conditions of probation as imposed by the sentencing judge, except for inability to pay fines, fees, or restitution.

            (b) "Compliance report" means a report generated and signed by the division of probation and parole that contains clear and concise information relating to the defendant's performance relative to "earned compliance credits", and may contain a recommendation as to early termination.

            (3) After a review of the compliance report, if it is the recommendation of the division of probation and parole that the defendant is in compliance with the conditions of probation, in accordance with the compliance report, the court shall grant "earned compliance credit" for the time, absent a showing of cause for a denial.

            (4) The court may terminate probation at any time as "satisfactorily completed" upon the final determination that the defendant is in compliance with the terms and conditions of probation.

            (5) If the court determines that the defendant has failed to successfully complete the terms and conditions of probation, the court may extend the probation for a period not to exceed two years, for the purpose of allowing the defendant additional time to complete the terms of probation, additional conditions, the extension of probation, or the revocation of probation.

            (6) Absent extenuating circumstances, the court shall, within ten days of receipt of the compliance report, make an initial determination as to the issues presented and shall transmit the decision to the probation officer. The court shall disseminate the decision to the defendant, the division of probation and parole, and the prosecuting agency within ten days of receipt. The parties shall have ten days from receipt of the initial determination of the court to seek an expedited contradictory hearing for the purpose of challenging the court's determination. If no challenge is made within ten days, the court's initial determination shall become final and shall constitute a valid order of the court.

            Amended by Acts 1994, 3rd Ex. Sess., No. 100, §1; Acts 1994, 3rd Ex. Sess., No. 123, §1; Acts 1995, No. 990, §1; Acts 1995, No. 1251, §4; Acts 1996, 1st Ex. Sess., No. 5, §1, eff. April 23, 1996; Acts 1997, No. 696, §1; Acts 2001, No. 403, §5 eff. June 15, 2001; Acts 2001, No. 1206, §3; Acts 2006, No. 242, §2; Acts 2006, No. 581, §1; Acts 2008, No. 104, §1; Acts 2009, No. 168, §1; Acts 2010, No. 801, §2, eff. June 30, 2010; Acts 2015, No. 199, §1; Acts 2016, No. 509, §1; Acts 2016, No. 676, §2, eff. June 17, 2016; Acts 2017, No. 280, §1, eff. Nov. 1, 2017; Acts 2018, No. 508, §1; Acts 2018, No. 668, §2; Acts 2019, No. 386, §2.

NOTE: Acts 2008, No. 104, §2, provides that the provisions of the Act are remedial and therefore shall apply retroactively.

Art. 893.1. Motion to invoke firearm sentencing provision

A.  If the district attorney intends to move for imposition of sentence under the provisions of Article 893.3, he shall file a motion within a reasonable period of time prior to commencement of trial of the felony or specifically enumerated misdemeanor in which the firearm was used.

B.  The motion shall contain a plain, concise, and definite written statement of the essential facts constituting the basis for the motion and shall specify the provisions of this Chapter under which the district attorney intends to proceed.

Added by Acts 1981, No. 139, §1; Acts 1988, No. 319, §1; Acts 1999, No. 575, §1.

Art. 893.2. Discharge, use, or possession of firearm in commission of a felony or a specifically enumerated misdemeanor;  hearing

             If a motion was filed by the state in compliance with Article 893.1, a determination shall be made as to whether a firearm was discharged, or used during the commission of the felony or specifically enumerated misdemeanor, or actually possessed during the commission of a felony which is a crime of violence as defined by R.S. 14:2(B), felony theft, production, manufacturing, distribution, dispensing, or possession with intent to produce, manufacture, distribute, or dispense a controlled dangerous substance in violation of the Uniform Controlled Dangerous Substances Law, or specifically enumerated misdemeanor and whether the mandatory minimum sentencing provisions of Article 893.3 have been shown to be applicable. Such determination is a specific finding of fact to be submitted to the jury and proven by the state beyond a reasonable doubt.

            Acts 1988, No. 319, §1; Acts 1999, No. 575, §1; Acts 2019, No. 326, §1, eff. June 11, 2019.

Art. 893.3. Sentence imposed on felony or specifically enumerated misdemeanor in which firearm was possessed, used, or discharged

            A. If the finder of fact finds beyond a reasonable doubt that the offender actually possessed a firearm during the commission of the felony or specifically enumerated misdemeanor for which he was convicted, the court shall impose a term of imprisonment of not less than two years nor more than the maximum term of imprisonment provided for the underlying offense; however, if the maximum sentence for the underlying offense is less than two years, the court shall impose the maximum sentence.

            B. If the finder of fact finds beyond a reasonable doubt that the offender actually used a firearm in the commission of the felony or specifically enumerated misdemeanor for which he was convicted, the court shall impose a term of imprisonment of not less than five years nor more than the maximum term of imprisonment provided for the underlying offense; however, if the maximum sentence for the underlying offense is less than five years, the court shall impose the maximum sentence.

            C. If the finder of fact finds beyond a reasonable doubt that the offender actually discharged a firearm in the commission of the felony or specifically enumerated misdemeanor for which he was convicted, the court shall impose a term of imprisonment of not less than ten years nor more than the maximum term of imprisonment provided for the underlying offense; however, if the maximum sentence for the underlying offense is less than ten years, the court shall impose the maximum sentence.

            D. If the finder of fact finds beyond a reasonable doubt that a firearm was actually used or discharged by the defendant during the commission of the felony for which he was convicted, and thereby caused bodily injury, the court shall impose a term of imprisonment of not less than fifteen years nor more than the maximum term of imprisonment provided for the underlying offense; however, if the maximum sentence for the underlying felony is less than fifteen years, the court shall impose the maximum sentence.

            E.(1)(a) Notwithstanding any other provision of law to the contrary, if the finder of fact has determined that the defendant committed a felony with a firearm as provided for in this Article, and the crime is considered a violent felony as defined in this Paragraph, the court shall impose a minimum term of imprisonment of not less than ten years nor more than the maximum term of imprisonment provided for the underlying offense. In addition, if the firearm is discharged during the commission of such a violent felony, the court shall impose a minimum term of imprisonment of not less than twenty years nor more than the maximum term of imprisonment provided for the underlying offense.

            (b) A "violent felony" for the purposes of this Paragraph is: second degree sexual battery, aggravated burglary, carjacking, armed robbery, second degree kidnapping, manslaughter, or forcible or second degree rape.

            (2) A sentence imposed under this Paragraph shall be without benefit of parole, probation or suspension of sentence.

            F. A sentence imposed under the provisions of this Article shall not be suspended and shall be imposed in the same manner as provided in the felony for which the defendant was convicted.

            G. A defendant sentenced under the provisions of this Article shall not be eligible for parole during the period of the mandatory minimum sentence.

            H. If the court finds that a sentence imposed under provisions of this Article would be excessive, the court shall state for the record the reasons for such finding and shall impose the most severe sentence which is not excessive.

            I. For the purpose of this Article, "firearm" is defined as an instrument used in the propulsion of shot, shell, or bullets by the action of gunpowder exploded within.

            J. For purposes of this Article, the specifically enumerated misdemeanors to which these sentencing provisions are applicable shall be:

            (1) R.S. 14:79, violation of a protective order, involving an assault or battery of the person protected.

            (2) R.S. 14:67, theft.

            (3) R.S. 14:35, simple battery.

            (4) R.S. 14:37, aggravated assault.

            (5) R.S. 14:40.2, stalking.

            (6) R.S. 14:35.3, domestic abuse battery.

            Acts 1988, No. 319, §1; Acts 1994, 3rd Ex. Sess., No. 41, §1; Acts 1999, No. 575, §1; Acts 2004, No. 676, §3; Acts 2007, No. 41, §1; Acts 2015, No. 184, §6; Acts 2019, No. 326, §1, eff. June 11, 2019.

Art. 893.4. Inapplicability to unintentional felonies

The provisions of Article 893.3 shall not apply to a conviction for a felony in which criminal negligence is an element of the offense unless the firearm was actually used or discharged during the commission of the offense.

Acts 1988, No. 319, §1; Acts 1999, No. 575, §1.

Art. 893.5. Community service in lieu of imprisonment

A.  Except as otherwise prohibited by law, the court may suspend, in whole or in part, the imposition or execution of sentence if:

(1)  The defendant has not previously been convicted of a felony.

(2)  The maximum term of imprisonment for the offense is thirty years or less.

(3)  The court imposes a period of court-approved community service of not less than two nor more than five years.

(4)  The court specifies in written form in the court record the reason for the imposition of community service in lieu of imprisonment.

B.  An offender sentenced under the provisions of this Article shall be subject to all conditions of supervised probation imposed by the court or as set forth by law.  The offender may have his probation revoked or modified as provided by law and shall not be allowed credit for time spent doing community service or for the time elapsed during suspension of the sentence.

Acts 1990, No. 462, §1; Acts 1991, No. 406, §1.

Art. 894. Suspension and deferral of sentence;  probation in misdemeanor cases

            A.(1) Notwithstanding any other provision of this Article to the contrary, when a defendant has been convicted of a misdemeanor, except criminal neglect of family, or stalking, the court may suspend the imposition or the execution of the whole or any part of the sentence imposed, provided suspension is not prohibited by law, and place the defendant on unsupervised probation or probation supervised by a probation office, agency, or officer designated by the court, other than the division of probation and parole of the Department of Public Safety and Corrections, upon such conditions as the court may fix. Such suspension of sentence and probation shall be for a period of two years or such shorter period as the court may specify.

            (2) When a suspended sentence in excess of six months is imposed, the court may place the defendant on probation under the supervision of the Department of Public Safety and Corrections, division of probation and parole, for a period of not more than two years and under such conditions as the court may specify.

            (3) When a defendant has been convicted of the misdemeanor offense of operating a vehicle while intoxicated, second offense, the court may suspend the imposition or the execution of the whole or any part of the sentence imposed and place the defendant on unsupervised or supervised probation upon such conditions as the court may fix, where suspension is not prohibited under the law. Such suspension of sentence and probation shall be for a period of two years or such shorter period as the court may specify.

            (4) The court may suspend, reduce, or amend a misdemeanor sentence after the defendant has begun to serve the sentence.

            (5) At the time that any defendant petitions the court to set aside any plea for operating a vehicle while intoxicated pursuant to this Article, the court shall order the clerk of court to mail to the Department of Public Safety and Corrections, office of motor vehicles, a certified copy of the record of the plea, fingerprints of the defendant, and proof of the requirements as set forth in Code of Criminal Procedure Article 556.1 which shall include the defendant's date of birth, social security number, and driver's license number. An additional fifty dollar court cost shall be assessed at this time against the defendant and paid to the Department of Public Safety and Corrections, office of motor vehicles, for the costs of storage and retrieval of the records.

            (6) When a case is assigned to the drug division probation program pursuant to the provisions of R.S. 13:5304, with the consent of the district attorney, the court may place the defendant on probation for a period of not more than eight years if the court determines that successful completion of the program may require that the period of probation exceed the two-year limit. If necessary to assure successful completion of the drug division probation program, the court may extend the duration of the probation period. The period of probation as initially fixed or as extended shall not exceed eight years.

            (7) When a case is assigned to an established driving while intoxicated court or sobriety court program certified by the Louisiana Supreme Court Drug Court Office, the National Highway Traffic Safety Administration, or the Louisiana Highway Safety Commission, with the consent of the district attorney, the court may place the defendant on probation for a period of not more than eight years if the court determines that the successful completion of the program may require that the period of probation exceed the two-year limit. If necessary to assure successful completion of the driving while intoxicated court or sobriety court program, the court may extend the duration of the probation period. The period of probation as initially fixed or as extended shall not exceed eight years.

            B.(1) When the imposition of sentence has been deferred by the court, as authorized by this Article, and the court finds at the conclusion of the period of deferral that the defendant has not been convicted of any other offense during the period of the deferred sentence, and that no criminal charge is pending against him, the court may set the conviction aside and dismiss the prosecution. However, prior to setting aside any conviction and dismissing the prosecution for any charge for operating a vehicle while intoxicated, the court shall require proof in the form of a certified letter from the Department of Public Safety and Corrections, office of motor vehicles, that the requirements of Subparagraph (A)(5) of this Article have been complied with.

            (2) The dismissal of the prosecution shall have the same effect as an acquittal, except that the conviction may be considered as a prior offense and provide the basis for subsequent prosecution of the party as a multiple offender. Discharge and dismissal under this provision may occur only once with respect to any person during a five-year period. Except as provided in Subparagraph (3) of this Paragraph, discharge and dismissal under this provision for the offense of operating a vehicle while intoxicated may occur only once with respect to any person during a ten-year period.

            (3) Discharge and dismissal pursuant to the provisions of this Subparagraph may occur on a single subsequent prosecution and conviction which occurs during the ten-year period provided for in Subparagraph (B)(2) of this Article if the following conditions are met:

            (a) The offender has successfully completed a driving while intoxicated court or sobriety court program pursuant to Subparagraph (A)(7) of this Article.

            (b) The conditions imposed by the court pursuant to the provisions of Subparagraph (A)(3) of this Article have been met.

            C. Nothing contained herein shall be construed as being a basis for destruction of records of the arrest and prosecution of any person convicted of a misdemeanor.

            D.(1) The Department of Public Safety and Corrections, office of motor vehicles, shall serve as a repository for the records referred to in Subparagraph (A)(5) of this Article for any plea for operating a vehicle while intoxicated entered pursuant to the provisions of this Article. The department shall maintain records for a period of ten years. The department shall respond by certified mail to a request by any court, prosecuting agency, or defendant seeking certified copies of the records or verification that the records are in the possession of the department.

            (2) The records maintained by the department pursuant to this Article shall be confidential, except as otherwise provided in this Article. Certified copies of the records maintained by the department shall be admissible only in a subsequent prosecution for operating a vehicle while intoxicated and shall not be used for any other purpose.

            (3)(a) The Department of Insurance is hereby authorized to expend from any surplus it derives from a fiscal year an amount not to exceed three hundred thousand dollars to the office of motor vehicles to fully implement and maintain the electronic database established in this Paragraph.

            (b) The Department of Insurance is further authorized to enter into cooperative endeavor agreements with the Louisiana State Supreme Court, any district attorney's office, or any clerk of court's office for training and usage of the database created by this Paragraph.

            Acts 1972, No. 514, §1; Acts 1972, No. 651, §1; Acts 1975, No. 608, §1; Acts 1978, No. 570, §3; Acts 1982, No. 270, §1; Acts 1986, No. 184, §1; Acts 1987, No. 59, §1; Acts 1989, No. 35, §1; Acts 1990, No. 89, §1; Acts 1995, No. 1251, §4; Acts 1996, 1st Ex. Sess., No. 5, §1, eff. April 23, 1996; Acts 1999, No. 1168, §1; Acts 2004, No. 730, §1; Acts 2007, No. 62, §2; Acts 2008, No. 451, §1, eff. June 25, 2008; Acts 2012, No. 670, §1; Acts 2015, No. 199, §1.

NOTE: Acts 1996, 1st Ex. Sess., No. 5, §1, adding Article 894(B) was retroactive to Aug. 15, 1995.

Art. 894.1. Sentencing guidelines;  generally

A.  When a defendant has been convicted of a felony or misdemeanor, the court should impose a sentence of imprisonment if any of the following occurs:

(1)  There is an undue risk that during the period of a suspended sentence or probation the defendant will commit another crime.

(2)  The defendant is in need of correctional treatment or a custodial environment that can be provided most effectively by his commitment to an institution.

(3)  A lesser sentence will deprecate the seriousness of the defendant's crime.

B.  The following grounds, while not controlling the discretion of the court, shall be accorded weight in its determination of suspension of sentence or probation:

(1)  The offender's conduct during the commission of the offense manifested deliberate cruelty to the victim.

(2)  The offender knew or should have known that the victim of the offense was particularly vulnerable or incapable of resistance due to extreme youth, advanced age, disability, or ill health.

(3)  The offender offered or has been offered or has given or received anything of value for the commission of the offense.

(4)  The offender used his or her position or status to facilitate the commission of the offense.

(5)  The offender knowingly created a risk of death or great bodily harm to more than one person.

(6)  The offender used threats of or actual violence in the commission of the offense.

(7)  Subsequent to the offense, the offender used or caused others to use violence, force, or threats with the intent to influence the institution, conduct, or outcome of the criminal proceedings.

(8)  The offender committed the offense in order to facilitate or conceal the commission of another offense.

(9)  The offense resulted in a significant permanent injury or significant economic loss to the victim or his family.

(10)  The offender used a dangerous weapon in the commission of the offense.

(11)  The offense involved multiple victims or incidents for which separate sentences have not been imposed.

(12)  The offender was persistently involved in similar offenses not already considered as criminal history or as a part of a multiple offender adjudication.

(13)  The offender was a leader or his violation was in concert with one or more other persons with respect to whom the offender occupied a position of organizer, a supervisory position, or any other position of management.

(14)  The offense was a major economic offense.

(15)  The offense was a controlled dangerous substance offense and the offender obtained substantial income or resources from ongoing drug activities.

(16)  The offense was a controlled dangerous substance offense in which the offender involved juveniles in the trafficking or distribution of drugs.

(17)  The offender committed the offense in furtherance of a terrorist action.

(18)  The offender foreseeably endangered human life by discharging a firearm during the commission of an offense which has, as an element, the use, attempted use, or threatened use of physical force against the person or property of another, and which, by its very nature, involves a substantial risk that physical force may be used in the course of committing the offense.

(19)  The offender used a firearm or other dangerous weapon while committing or attempting to commit an offense which has, as an element, the use, attempted use, or threatened use of physical force against the person or property of another, and which by its very nature, involves a substantial risk that physical force may be used in the course of committing the offense.

(20)  The offender used a firearm or other dangerous weapon while committing or attempting to commit a controlled dangerous substance offense.

(21)  Any other relevant aggravating circumstances.

(22)  The defendant's criminal conduct neither caused nor threatened serious harm.

(23)  The defendant did not contemplate that his criminal conduct would cause or threaten serious harm.

(24)  The defendant acted under strong provocation.

(25)  There were substantial grounds tending to excuse or justify the defendant's criminal conduct, though failing to establish a defense.

(26)  The victim of the defendant's criminal conduct induced or facilitated its commission.

(27)  The defendant has compensated or will compensate the victim of his criminal conduct for the damage or injury that he sustained.

(28)  The defendant has no history of prior delinquency or criminal activity or has led a law-abiding life for a substantial period of time before the commission of the instant crime.

(29)  The defendant's criminal conduct was the result of circumstances unlikely to recur.

(30)  The defendant is particularly likely to respond affirmatively to probationary treatment.

(31)  The imprisonment of the defendant would entail excessive hardship to himself or his dependents.

(32)  The defendant has voluntarily participated in a pretrial drug testing program.

(33)  Any other relevant mitigating circumstance.

C.  The court shall state for the record the considerations taken into account and the factual basis therefor in imposing sentence.

D.  Immediately following the imposition of a felony sentence pursuant to this Article, the sentencing court shall advise the offender in open court whether the sentence imposed was enhanced pursuant to R.S. 15:529.1 et seq., Article 893.3, or any other relevant provision of law.

E.  All victims of felonies who provide a written request to the Department of Public Safety and Corrections, which includes a mailing address, are entitled to receive a written report of the prospective term of imprisonment of their offenders.  The Department of Public Safety and Corrections shall furnish to the victim within ninety days of commitment a report which includes the following information, in a format to be determined by the Department of Public Safety and Corrections:

(1)  The prospective release date of the offender should his sentence be subject to diminution of sentence for good behavior, to the extent that the report shall advise the offender that he may be released upon serving the certain percentage of his sentence as provided for by law.

(2)  The prospective parole eligibility date of the offender should he be eligible for parole pursuant to R.S. 15:574.4 et seq., to the extent that the report shall advise the offender that he may be eligible for release upon serving a certain percentage of his sentence as provided by law.

F.  However, no sentence shall be declared unlawful or inadequate for failure to comply with the provisions of Paragraph D.

Added by Acts 1977, No. 635, §1; Acts 1986, No. 704, §1; Acts 1987, No. 500, §1; Acts 1991, No. 22, §1; Acts 1995, No. 942, §1; Acts 1997, No. 750, §1; Acts 1997, No. 1199, §§1, 2; Acts 2010, No. 350, §1.

NOTE:  See Acts 1991, No. 22, §2, for special effective date.

Art. 894.2. Home incarceration;  requirements

A.  Notwithstanding any other provision of law to the contrary, a defendant may be placed on home incarceration under the following conditions:

(1)  The defendant is eligible for probation or was convicted of a misdemeanor or a felony punishable with or without hard labor.

(2)  In felony cases, either:

(a)  The Department of Public Safety and Corrections, through the division of probation and parole, recommends home incarceration of the defendant and specific conditions of that home incarceration; or

(b)  The district attorney recommends home incarceration.

(3)  The court determines, after a contradictory hearing, that home incarceration of the defendant is more suitable than imprisonment or supervised probation without home incarceration and would serve the best interests of justice.  The court may order home incarceration either in lieu of, or in addition to, a term of imprisonment.  When the court sentences a defendant, it may order the defendant to serve any portion of the sentence under home incarceration.

B.(1)  A defendant ordered to home incarceration shall be supervised and may be subject to any of the conditions of probation.  Every provider of home incarceration supervision or electronic monitoring services shall submit information to the court, the sheriff of the parish, and the Department of Public Safety and Corrections.  The Department of Public Safety and Corrections is authorized to establish regulations to develop a uniform reporting format and procedures for providers of home incarceration in order to promote efficiency and uniformity in data collection.  Information provided shall include but not be limited to:

(a)  An annual report indicating the services offered, areas served, number of defendants served, number of defendants who successfully completed home incarceration and the number of defendants terminated and the reasons for termination, and credentials or qualifications of the provider.

(b)  A monthly report including the name, date of birth, and offense of conviction for every defendant supervised.

(2)  Failure to comply with the provisions of this Paragraph may subject the provider to forfeiture of its authority to do business.

C.  The court shall specify the conditions of home incarceration.  The conditions may include any condition reasonably related to implementing or monitoring the home incarceration, including curfew, electronic or telephone monitoring, home visitation by persons designated by the court, and limitation of the defendant's activities outside of the home.

D.  The defendant shall be given a certificate setting forth the conditions of his home incarceration and shall be required to agree in writing to the conditions.

E.  Within thirty days of issuing the order placing the defendant on home incarceration, the court shall cause the minute entry to be sent by the clerk of court to the Department of Public Safety and Corrections and the sheriff of the parish or chief law enforcement officer of a municipality where the defendant is to serve the home incarceration.   The minute entry shall include all available contact information of the home incarceration or electronic monitoring provider.

F.  The court may require the defendant to obtain employment and may require the defendant to pay a reasonable supervision fee to the supervising agency to defray the cost of his home incarceration supervision.

G.  The court may, at any time during the period of home incarceration, modify, change, or add to the conditions of such incarceration.

H.  The period of home incarceration shall be for a period of not more than four years in felony cases and for a period not to exceed six months in misdemeanor cases.

I.  If the defendant violates the conditions of home incarceration, the court, on motion of the state or its own motion, may, after contradictory hearing modify or impose a sentence of imprisonment.

J.  In the event of revocation and sentence to imprisonment, the defendant shall not receive credit for time served under home incarceration.

K.  The provisions of this Article shall not be applicable to a defendant who has been convicted of any second violation of any state or local driving-while-intoxicated law committed within five years of the commission of any prior driving-while-intoxicated violation until the defendant has first served a minimum of forty-eight consecutive hours of imprisonment.

L.  Paragraphs A and H of this Article shall not apply to a defendant who has been convicted of any third or subsequent violation of any state law or local ordinance prohibiting driving while intoxicated committed within five years of the commission of any prior driving-while-intoxicated violation.  Such defendants shall be subject to home incarceration as provided for in R.S. 14:98.

Acts 1988, No. 321, §1; Acts 1989, 1st Ex.  Sess., No. 10, §1, eff. March 13, 1989; Acts 1991, No. 431, §1; Acts 1992, No. 653, §1, eff. July 2, 1992; Acts 1997, No. 663, §1; Acts 2001, No. 1163, §1; Acts 2009, No. 159, §1; Acts 2010, No. 812, §1; Acts 2011, No. 168, §1.

Art. 894.3. Notice to victim for sentencing

           A. Before sentencing a defendant who has been convicted of a violation of a sex offense as defined in R.S. 15:541, the office of the district attorney shall notify the clerk of court of the name and the address of the victim, and the clerk of court shall give written notice of the date and time of sentencing at least three days prior to the hearing, when the sentencing is not immediately following the finding of guilt, to the victim or the victim's parent or guardian, unless the victim, parent, or guardian has advised the office of the district attorney in writing that such notification is not desired.

           B. The victim or the victim's parent or guardian who desires to do so shall be given a reasonable opportunity to attend the hearing and to be heard.

           Acts 1992, No. 962, §1; Acts 1995, No. 1290, §3; Acts 2001, No. 1206, §3.

Art. 894.4. Probation;  extension

            Probation shall neither be revoked nor extended based solely upon the defendant's inability to pay fines, fees, or restitution to the victim.

            Acts 2006, No. 823, §1; Acts 2010, No. 808, §1; Acts 2017, No. 260, §1, eff. Aug. 1, 2018; Acts 2018, No. 137, §1, eff. Aug. 1, 2018; Acts 2018, No. 668, §1, eff. Aug. 1, 2019, §4, eff. Aug. 1, 2018.

NOTE: This article was amended and reenacted by Acts 2017, No. 260 with an effective date of Aug. 1, 2018. Subsequent Acts delayed the effective date of Act 260 to Aug. 1, 2021. (See Acts 2018, No. 137 and 668 and Acts 2019, No. 253). Acts 2018, No. 668 amended the substance of this Article with an effective date of Aug. 1, 2019 which was not amended by the 2019 Act which delayed the effective date of Acts 2017, No. 260 to Aug. 1, 2021.

Art. 894.5. Submission of DWI--Code of Criminal Procedure Article 894 Plea Records to office of motor vehicles;  forms to be used and completed by the clerk of court

TRANSMITTAL OF RECORDS OF DWI PLEA PURSUANT TO ARTICLE 894

_____________________________

_____________________________

_____________________________

________________

DATE

 

 

OFFICE OF MOTOR VEHICLES

P.O. BOX 64886

BATON ROUGE, LA 70896

 

NAME_____________________DRIVERS LICENSE#____________________

 

DATE OF BIRTH:____________OFFENSE DATE:_______________________

 

SS#________________________DOCKET NO:__________________________

 

TICKET NO:______________________

 

            ☐          Attached is a certified copy of the court minutes, original/certified copy of fingerprints, and proof of the requirements as set forth in the Code of Criminal Procedure Article 556.1, as well as a $50.00 money order or certified funds made payable to the office of motor vehicles, in reference to the above named defendant.

 

NOTE: Do not use this form to submit records of a DWI expungement pursuant to Code of Criminal Procedure Article 984.

            Acts 2015, No. 200, §2.

Art. 895. Conditions of probation

            A. When the court places a defendant on probation, it shall require the defendant to refrain from criminal conduct and to pay a supervision fee to defray the costs of probation supervision, and it may impose any specific conditions reasonably related to his rehabilitation, including any of the following. That the defendant shall:

            (1) Make a full and truthful report at the end of each month;

            (2) Meet his specified family responsibilities, including any obligations imposed in a court order of child support;

            (3) Report to the probation officer as directed;

            (4) Permit the probation officer to visit him at his home or elsewhere;

            (5) Devote himself to an approved employment or occupation;

            (6) Refrain from owning or possessing firearms or other dangerous weapons;

            (7) Make reasonable reparation or restitution to the aggrieved party for damage or loss caused by his offense in an amount to be determined by the court;

            (8) Refrain from frequenting unlawful or disreputable places or consorting with disreputable persons;

            (9) Remain within the jurisdiction of the court and get the permission of the probation officer before making any change in his address or his employment; and

            (10) Devote himself to an approved reading program at his cost if he is unable to read the English language.

            (11) Perform community service work.

            (12) Submit himself to available medical, psychiatric, mental health, or substance abuse examination or treatment or both when deemed appropriate and ordered to do so by the probation and parole officer.

            (13)(a) Agree to searches of his person, his property, his place of residence, his vehicle, or his personal effects, or any or all of them, at any time, by the probation or parole officer assigned to him or by any probation or parole officer who is subsequently assigned or directed by the Department of Public Safety and Corrections to supervise the person, whether the assignment or directive is temporary or permanent, with or without a warrant of arrest or with or without a search warrant, when the probation officer or the parole officer has reasonable suspicion to believe that the person who is on probation is engaged in or has been engaged in criminal activity.

            (b) For those persons who have been convicted of a "sex offense" as defined in R.S. 15:541, agree to searches of his person, his property, his place of residence, his vehicle, or his personal effects, or any or all of them, at any time, by a law enforcement officer, duly commissioned in the parish or municipality where the sex offender resides or is domiciled, designated by his agency to supervise sex offenders, with or without a warrant of arrest or with or without a search warrant, when the officer has reasonable suspicion to believe that the person who is on probation is engaged in or has been engaged in criminal activity for which the person has not been charged or arrested while on probation.

            B.(1) In felony cases, an additional condition of the probation may be that the defendant shall serve a term of imprisonment without hard labor for a period not to exceed two years.

            (2) In felony cases assigned to the drug division probation program pursuant to the provisions of R.S. 13:5304, the court may impose as a condition of probation that the defendant successfully complete the intensive incarceration program established pursuant to R.S. 15:574.4.4. If the defendant is not accepted into the intensive incarceration program or fails to successfully complete the intensive incarceration program, the court shall reconsider the sentence imposed as provided in Article 881.1.

            (3) In felony cases, an additional condition of the probation may be that the defendant be ordered to be committed to the custody of the Department of Public Safety and Corrections and be required to serve a sentence of not more than twelve months without diminution of sentence in the intensive incarceration program pursuant to the provisions of R.S. 15:574.4.4. Upon successful completion of the program, the defendant shall return to supervised probation for a period of time as ordered by the court, subject to any additional conditions imposed by the court and under the same provisions of law under which the defendant was originally sentenced. If an offender is denied entry into the intensive incarceration program for physical or mental health reasons or for failure to meet the department's suitability criteria, the department shall notify the sentencing court, and the offender shall be resentenced in accordance with the provisions of Article 881.1.

            C. In cases of violations of the Uniform Controlled Dangerous Substances Law, the court may order the suspension or restriction of the defendant's driving privileges, if any, for all or part of the period of probation. In such cases, a copy of the order shall be forwarded to the Department of Public Safety and Corrections, which shall suspend the defendant's driver's license or issue a restricted license in accordance with the orders of the court. Additionally, the court may order the defendant to:

            (1) Submit to and pay all costs for drug testing by an approved laboratory at the direction of his probation officer.

            (2) Perform not less than one hundred sixty hours nor more than nine hundred sixty hours of community service work.

            D. The court may, in lieu of the monthly supervision fee provided for in Paragraph A, require the defendant to perform a specified amount of community service work each month if the court finds the defendant is unable to pay the supervision fee provided for in Paragraph A.

            E. Before the court places a sexual offender on probation, it shall order the offender who has not previously been tested to submit to a blood and saliva test in accordance with R.S. 15:535. All costs shall be paid by the offender. Serial sexual offenders sentenced pursuant to R.S. 15:537(B) shall not be eligible for parole or probation.

            F. In cases of any violation of Subpart (A)(1) of Part V of Chapter 1 of Title 14 of the Louisiana Revised Statutes of 1950 or R.S. 14:92(7), the court may order the defendant to submit to psychological evaluation and, if indicated, order him to obtain psychiatric or psychological counseling for all or part of the period of probation. All costs shall be paid by the defendant.

            G. Before the court places the defendant on probation, it shall determine if the defendant has a high school degree or its equivalent and, if the defendant does not, it shall order the defendant to take a reading proficiency test. If the defendant scores below a sixth grade level on the reading proficiency test, the court shall condition probation upon the defendant's enrolling in and attending an adult education or reading program until he attains a sixth grade reading level or until his term of probation expires, whichever occurs first. All costs shall be paid by the defendant. If the court finds that there are no adult education or reading programs in the parish in which the defendant is domiciled, the defendant is unable to afford such a program, or attendance would create an undue hardship on the defendant, the court may suspend this condition of probation. The provisions of this Paragraph shall not apply to those defendants who are mentally, physically, or by reason of age, infirmity, dyslexia or other such learning disorders unable to participate.

            H.(1) In cases where the defendant has been convicted of or adjudication has been deferred or withheld for the perpetration or attempted perpetration of a sex offense as defined in R.S. 15:541, and probation is permitted by law and when the court places a defendant on probation, the court shall order the offender to register as a sex offender and to provide notification in accordance with the provisions of R.S. 15:540 et seq.

            (2) The defendant must state under oath where he will reside after sentencing and that he will advise the court of any subsequent change of address during the probationary period.

            (3) No offender who is the parent, stepparent, or has legal custody and physical custody of the child who is the victim shall be released on probation unless the victim has received psychological counseling prior to the offender's release if the offender is returning to the residence or community in which the child resides. Such psychological counseling shall include an attempt by the health care provider to ease the psychological impact upon the child of the notice required under Subparagraph (1) of this Paragraph, including assisting the child in coping with potential insensitive comments and actions by the child's neighbors and peers. The cost of such counseling shall be paid by the offender.

            (4) Repealed by Acts 2007, No. 460, §3, eff. Jan. 1, 2008.

            (5) The court may order that the conditions of probation as provided for in Subparagraph (1) of this Paragraph shall apply for each subsequent change of address made by the defendant during the probationary period.

            I.(1) In cases where the defendant has been convicted of or where adjudication has been deferred or withheld for the perpetration or attempted perpetration of a sex offense as defined in R.S. 15:541 and the victim of that offense is a minor, the court may, if the department has the equipment and appropriately trained personnel, as an additional condition of probation, authorize the use of truth verification examinations to determine if the defendant has violated a condition of probation. If ordered by the court as a condition of probation, the Department of Public Safety and Corrections, division of probation and parole, is hereby authorized to administer a truth verification examination pursuant to the court order and the provisions of this Paragraph.

            (2) Any examination conducted pursuant to the provisions of this Paragraph shall be subsequent to an allegation that the defendant has violated a condition of probation or at the discretion of the probation officer who has reason to believe that the defendant has violated a condition of probation.

            (3) The truth verification examination shall be conducted by a trained and certified polygraphist or voice stress examiner.

            (4) The results of the truth verification examination may be considered in determining the level of supervision and treatment needed by the defendant and in the determination of the probation officer as to whether the defendant has violated a condition of probation; however, such results shall not be used as evidence in court to prove that a violation of a condition of probation has occurred.

            (5) The sexual offender may request a second truth verification examination to be conducted by a trained and certified polygraphist or voice stress examiner of his choice. The cost of the second examination shall be borne by the offender.

            (6) For purposes of this Article:

            (a) "Polygraph examination" shall mean an examination conducted with the use of an instrument or apparatus for simultaneously recording cardiovascular pressure, pulse and respiration, and variations in electrical resistance of the skin.

            (b) "Truth verification examination" shall include a polygraph examination or a voice stress analysis.

            (c) "Voice stress analysis" shall mean an examination conducted with the use of an instrument or apparatus which records psychophysiological stress responses that are present in a human voice when a person suffers psychological stress in response to a stimulus.

            J. The defendant shall be given a certificate setting forth the conditions of his probation and shall be required to agree in writing to the conditions.

            K. In cases where the defendant has been convicted of an offense involving criminal sexual activity, the court shall order as a condition of probation that the defendant successfully complete a sex offender treatment program. As part of the sex offender treatment program, the offender shall participate with a victim impact panel or program providing a forum for victims of criminal sexual activity and sex offenders to share experiences on the impact of the criminal sexual activity in their lives. The Department of Public Safety and Corrections shall establish guidelines to implement victim impact panels where, in the judgment of the licensed professional responsible for the sexual treatment program, appropriate victims are available, and shall establish guidelines for other programs where such victims are not available. All costs for the sex offender treatment program shall be paid by the offender.

            L. A conviction for any offense involving criminal sexual activity as provided for in Paragraph H of this Article, includes a conviction for an equivalent offense under the laws of another state. Criminal sexual offenders under the supervision and legal authority of the Department of Public Safety and Corrections pursuant to the terms and conditions of the interstate compact agreement provided for in R.S. 15:574.31 et seq. shall be notified of the registration requirements provided for in this Article at the time the department accepts supervision and has legal authority of the individual.

            M.(1) In all cases where the defendant has been convicted of an offense of domestic abuse as provided in R.S. 46:2132(3) to a family or household member as provided in R.S. 46:2132(4), or of an offense of dating violence as provided in R.S. 46:2151(C) to a dating partner as provided in R.S. 46:2151(B), the court shall order that the defendant submit to and successfully complete a court-approved course of counseling or therapy related to family or dating violence, for all or part of the period of probation. If the defendant has already completed such a counseling program, said counseling requirement shall be required only upon a finding by the court that such counseling or therapy would be effective in preventing future domestic abuse or dating violence.

            (2) All costs for the counseling or therapy shall be paid by the offender. In addition, the court may order that the defendant pay an amount not to exceed one thousand dollars to a family violence program located in the parish where the offense of domestic abuse occurred.

            N. If a defendant is injured or suffers other loss in the performance of community service work required as a condition of probation, neither the state nor any political subdivision, nor any officer, agent, or employee of the state or political subdivision shall be liable for any such injury or loss, unless the injury or loss was caused by the gross negligence or intentional acts of the officer, agent, or employee of the state or political subdivision. No provision of this Paragraph shall negate any requirement that an officer, agent, or employee secure proper and appropriate medical assistance for a defendant who is injured while performing community service work and in need of immediate medical attention.

            O.(1) Any mentor of an offender on probation under the supervision of any court division created pursuant to R.S. 13:5304, 5354, 5366, or 5401 shall not be liable for any injury or loss caused or suffered by an offender that arises out of the performance of duties as a mentor, unless the injury or loss was caused by the gross negligence or intentional acts of the mentor.

            (2) Neither the court nor any officer, agent, or employee of the court shall be liable for any injury or loss to the offender, the mentor, or any third party for the actions of the mentor or the offender.

            (3) As provided in this Subsection, "mentor" means a person approved by the court who volunteers to provide support and personal, educational, rehabilitation, and career guidance to the offender during probation and who has either completed a court-approved mentor training program or who has successfully completed his sentence pursuant to R.S. 13:5304, 5354, 5366, or 5401.

            (4) Nothing in this Subparagraph shall affect the vicarious liability of the employer pursuant to Civil Code Article 2320 or the ability of an employee to file a claim for workers' compensation.

            Amended by Acts 1994, 3rd Ex. Sess., No. 57, §1, eff. July 7, 1994; Acts 1994, 3rd Ex. Sess., No. 58, §2, eff. July 7, 1994; Acts 1994, 3rd Ex. Sess., No. 70, §2; Acts 1995, No. 605, §1, eff. June 18, 1995; Acts 1995, No. 906, §1; Acts 1995, No. 928, §2; Acts 1995, No. 1266, §1, eff. June 29, 1995; Acts 1995, No. 1290, §3; Acts 1995, No. 1291, §1; Acts 1995, No. 1303, §2; Acts 1997, No. 134, §1; Acts 1997, No.137, §1; Acts 1997, No. 520, §1; Acts 1997, No. 602, §1; Acts 1997, No. 1148, §1, eff. July 14, 1997; Acts 1999, No. 1150, §2; Acts 1999, No. 1157, §1; Acts 1999, No. 1209, §2; Acts 2001, No. 1206, §3; Acts 2003, No. 750, §2; Acts 2007, No. 460, §3, eff. Jan. 1, 2008; Acts 2008, No. 655; Acts 2008, No. 451, §1, eff. June 25, 2008; Acts 2009, No. 168, §1; Acts 2009, No. 362, §1; Acts 2012, No. 705, §2; Acts 2014, No. 271, §1; Acts 2016, No. 655, §1; Acts 2018, No. 351, §1.

Art. 895.1. Probation;  restitution;  judgment for restitution;  fees

NOTE: Subparagraph (A)(1) eff. until Aug. 1, 2021. See Acts 2017, No. 260; Acts 2018, No. 137 and No. 668; and Acts 2019, No. 253.

            A.(1) When a court places the defendant on probation, it shall, as a condition of probation, order the payment of restitution in cases where the victim or his family has suffered any direct loss of actual cash, any monetary loss pursuant to damage to or loss of property, or medical expense. The court shall order restitution in a reasonable sum not to exceed the actual pecuniary loss to the victim in an amount certain. However, any additional or other damages sought by the victim and available under the law shall be pursued in an action separate from the establishment of the restitution order as a civil money judgment provided for in Subparagraph (2) of this Paragraph. The restitution payment shall be made, in discretion of the court, either in a lump sum or in monthly installments based on the earning capacity and assets of the defendant.

NOTE: Subparagraph (A)(1) as amended by Acts 2017, No. 260, eff. Aug. 1, 2021. See Acts 2018, No. 137 and No. 668 and Acts 2019, No. 253.

            A.(1) When a court places the defendant on probation, it shall, as a condition of probation, order the payment of restitution in cases where the victim or his family has suffered any direct loss of actual cash, any monetary loss pursuant to damage to or loss of property, or medical expense. The court shall order restitution in a reasonable sum not to exceed the actual pecuniary loss to the victim in an amount certain. However, any additional or other damages sought by the victim and available under the law shall be pursued in an action separate from the establishment of the restitution order as a civil money judgment provided for in Subparagraph (2) of this Paragraph. If the court has determined, pursuant to the provisions of Article 875.1, that payment in full of the aggregate amount of all financial obligations imposed upon the defendant would cause substantial financial hardship to the defendant or his dependents, restitution payments shall be made pursuant to the provisions of Article 875.1.

NOTE: Subsubparagraph (A)(2)(a) eff. until Aug. 1, 2021. See Acts 2017, No. 260; Acts 2018, No. 137 and No. 668; and Acts 2019, No. 253.

            (2)(a) The order to pay restitution together with any order to pay costs or fines, as provided in this Article, is deemed a civil money judgment in favor of the person to whom restitution, costs, or fines is owed, if the defendant is informed of his right to have a judicial determination of the amount and is provided with a hearing, waived a hearing, or stipulated to the amount of the restitution, cost, or fine ordered. In addition to proceedings had by the court which orders the restitution, cost, or fine, the judgment may be enforced in the same manner as a money judgment in a civil case. Likewise, the judgment may be filed as a lien as provided by law for judgment creditors. Prior to the enforcement of the restitution order, or order for costs or fines, the defendant shall be notified of his right to have a judicial determination of the amount of restitution, cost, or fine. Such notice shall be served personally by the district attorney's office of the respective judicial district in which the restitution, cost, or fine is ordered.

NOTE: Subsubparagraph (A)(2)(a) as amended by Acts 2017, No. 260, eff. Aug. 1, 2021. See Acts 2018, No. 137 and No. 668 and Acts 2019, No. 253.

            (2)(a) The order to pay restitution together with any order to pay costs or fines, as provided in this Article, is deemed a civil money judgment in favor of the person to whom restitution, costs, or fines is owed, if the defendant is informed of his right to have a judicial determination of the amount and is provided with a hearing. In addition to proceedings by the court which orders the restitution, cost, or fine, the judgment may be enforced in the same manner as a money judgment in a civil case. Likewise, the judgment may be filed as a lien as provided by law for judgment creditors. Prior to the enforcement of the restitution order, or order for costs or fines, the defendant shall be notified of his right to have a judicial determination of the amount of restitution, cost, or fine. Such notice shall be served personally by the district attorney's office of the respective judicial district in which the restitution, cost, or fine is ordered.

            (b) In addition to the powers under R.S. 13:1336, the Criminal District Court for the Parish of Orleans shall have the authority to order the payment of restitution as provided in this Paragraph. The enforcement of the judgment for restitution shall be filed in the Civil District Court for the Parish of Orleans.

            (3) The court which orders the restitution shall provide written evidence of the order which constitutes the judgment.

            (4) The court may suspend payment of any amount awarded hereunder and may suspend recordation of any judgment hereunder during the pendency of any civil suit instituted to recover damages, from said defendant brought by the victim or victims which arises out of the same act or acts which are the subject of the criminal offense contemplated hereunder.

            (5) The amount of any judgment by the court hereunder, shall be credited against the amount of any subsequent civil judgment against the defendant and in favor of the victim or victims, which arises out of the same act or acts which are the subject of the criminal offense contemplated hereunder.

            B. When a court suspends the imposition or the execution of a sentence and places the defendant on probation, it may in its discretion, order placed, as a condition of probation, an amount of money to be paid by the defendant to any or all of the following:

            (1) To the indigent defender program for that court.

            (2) To the criminal court fund to defray the costs of operation of that court.

            (3) To the sheriff and clerk of court for costs incurred.

            (4) To a law enforcement agency for the reasonable costs incurred in arresting the defendant, in felony cases involving the distribution of or intent to distribute controlled dangerous substances.

            (5) To the victim to compensate him for his loss and inconvenience. Such an amount may be in addition to any amounts ordered to be paid by the defendant under Paragraph A herein.

            (6) To a duly incorporated crime stoppers organization for the reasonable costs incurred in obtaining information which leads to the arrest of the defendant.

            (7) To a local public or private nonprofit agency involved in drug abuse prevention and treatment for supervising a treatment program ordered by the court for a particular defendant, provided that such agency is qualified as a tax-exempt organization under Section 501(c) of the Internal Revenue Code of the United States. Any nonprofit agency receiving money under the provisions of this Paragraph must be licensed by the Louisiana Department of Health in the supervision of drug abuse prevention and treatment.

            C. When the court places the defendant on supervised probation, it shall order as a condition of probation a monthly fee of not less than sixty nor more than one hundred ten dollars payable to the Department of Public Safety and Corrections or such other probation office, agency, or officer as designated by the court, to defray the cost of supervision which includes salaries for probation and parole officers. If the probation supervision services are rendered by an agency other than the department, the fee may be ordered payable to that agency. These fees are only to supplement the level of funds that would ordinarily be available from regular state appropriations or any other source of funding.

            D. The court may, in lieu of the monthly supervision fee provided for in Paragraph C of this Article, require the defendant to perform a specified amount of community service work each month if the court finds the defendant is unable to pay the minimum supervision fee provided for in Paragraph C of this Article.

NOTE: Paragraph E eff. until July 1, 2020. See Acts 2019, No. 404.

            E. When the court places any defendant convicted of a violation of the controlled dangerous substances law, R.S. 40:966 through 1034, on any type of probation, it shall order as a condition of probation a fee of not less than fifty nor more than one hundred dollars, payable to the Louisiana Commission on Law Enforcement to be credited to the Drug Abuse Education and Treatment Fund and used for the purposes provided in R.S. 15:1224.

NOTE: Paragraph E as amended by Acts 2019, No. 404, eff. July 1, 2020.

            E. When the court places any defendant convicted of a violation of the Uniform Controlled Dangerous Substances Law, R.S. 40:966 through 1034, on any type of probation, it shall order as a condition of probation a fee of not less than fifty nor more than one hundred dollars, payable to the Louisiana Commission on Law Enforcement and Administration of Criminal Justice to be credited to the Drug Abuse Education and Treatment Dedicated Fund Account and used for the purposes provided in R.S. 15:1224.

            F. When the court places the defendant on supervised probation, it shall order as a condition of probation the payment of a monthly fee of eleven dollars. The monthly fee established in this Paragraph shall be in addition to the fee established in Paragraph C of this Article and shall be collected by the Department of Public Safety and Corrections and shall be transmitted, deposited, appropriated, and used in accordance with the following provisions:

            (1) The monthly fee established in this Paragraph shall be deposited immediately upon receipt in the state treasury.

NOTE: Subparagraph (F)(2) eff. until July 1, 2020. See Acts 2019, No. 404.

            (2) After compliance with the requirements of Article VII, Section 9(B) of the Constitution of Louisiana relative to the Bond Security and Redemption Fund, and prior to monies being placed in the state general fund, an amount equal to that deposited as required by Subparagraph (1) of this Paragraph shall be credited to a special fund which is hereby created in the state treasury to be known as the "Sex Offender Registry Technology Fund". The monies in this fund shall be used solely as provided in Subparagraph (3) of this Paragraph and only in the amounts appropriated by the legislature.

NOTE: Subparagraph (F)(2) as amended by Acts 2019, No. 404, eff. July 1, 2020.

            (2) After compliance with the requirements of Article VII, Section 9(B) of the Constitution of Louisiana relative to the Bond Security and Redemption Fund, and prior to monies being placed in the state general fund, the treasurer shall credit an amount equal to that deposited as required by Subparagraph (1) of this Paragraph to a special agency account to be retained for future appropriation as provided in this Article which is hereby created in the state treasury to be known as the "Sex Offender Registry Technology Dedicated Fund Account". The monies in this account shall be used solely as provided in Subparagraph (3) of this Paragraph and only in the amounts appropriated by the legislature. Monies deposited into this account shall be categorized as fees and self-generated revenue for the sole purpose of reporting related to the executive budget, supporting documents, and general appropriations bills and shall be available for annual appropriations by the legislature.

NOTE: Paragraph (F)(3)(intro. para.) eff. until July 1, 2020. See Acts 2019, No. 404.

            (3) The monies in the Sex Offender Registry Technology Fund shall be appropriated as follows:

NOTE: Paragraph (F)(3)(intro. para.) as amended by Acts 2019, No. 404, eff. July 1, 2020.

            (3) The monies in the Sex Offender Registry Technology Dedicated Fund Account shall be appropriated as follows:

            (a) For Fiscal Year 2006-2007, the amount of one hundred ninety thousand dollars to the Department of Public Safety and Corrections, office of state police, to be used in the administration of programs for the registration of sex offenders in compliance with federal and state laws, and support of community notification efforts by local law enforcement agencies. For Fiscal Years 2007-2008 through 2009-2010, the amount to be appropriated under this Subparagraph shall be twenty-five thousand dollars. For Fiscal Years 2010-2011, and thereafter, the amount to be appropriated to the Department of Public Safety and Corrections, office of state police, shall be twenty-five thousand dollars for the purposes of maintaining and administering the programs for the registration of sex offenders pursuant to this Subparagraph and special law enforcement initiatives.

NOTE: Subsubparagraph (F)(3)(b) eff. until July 1, 2020. See Acts 2018, No. 612.

            (b) For Fiscal Year 2010-2011 and each year thereafter, an amount equal to fifteen percent of the total residual monies available for appropriation from the fund shall be appropriated to the Department of Public Safety and Corrections, office of adult services, division of probation and parole.

NOTE: Subsubparagraph (F)(3)(b) as amended by Acts 2018, No. 612, eff. July 1, 2020.

            (b) For Fiscal Year 2010-2011 and each year thereafter, an amount equal to fifteen percent of the total residual monies available for appropriation from the account shall be appropriated to the Department of Public Safety and Corrections, office of adult services, division of probation and parole.

            (c) For Fiscal Year 2010-2011 through Fiscal Year 2013-2014, residual monies available for appropriation after satisfying the requirements of Subsubparagraphs (a) and (b) of this Subparagraph shall be appropriated to the Department of Justice, office of the attorney general. Of that residual amount, one hundred fifty thousand dollars shall be allocated to the office of the attorney general of which fifty thousand dollars shall be allocated for personnel and other costs to assist and monitor sheriff participation in utilization of the computer system, and one hundred thousand dollars of which shall be allocated to the cost of maintenance of the computer system which shall interface with the computer systems of the sheriffs of the parishes for registration of sex offenders and child predators.

            (d) For Fiscal Year 2014-2015, and thereafter, residual monies available for appropriation after satisfying the requirements of Subsubparagraphs (a) and (b) of this Subparagraph shall be appropriated to the Department of Justice, office of the attorney general. Of that residual amount, two hundred and fifty thousand dollars shall be allocated to the office of the attorney general of which one hundred and fifty thousand dollars shall be allocated for personnel and other costs to assist and monitor sheriff participation in utilization of the computer system and the administration of the sex offender and child predator registration and notification laws as set forth in R.S. 15:540 et seq., and one hundred thousand dollars of which shall be allocated to the cost of maintenance of the computer system of the sheriffs of the parishes for registration of sex offenders and child predators.

NOTE: Subsubparagraph (F)(3)(e) eff. until July 1, 2020. See Acts 2018, No. 612.

            (e) After providing for the allocations in Subsubparagraphs (a), (b), (c), and (d) of this Subparagraph, the remainder of the residual monies in the Sex Offender Registry Technology Fund shall, pursuant to an appropriation to the office of the attorney general, be distributed to the sheriff of each parish, based on the population of convicted sex offenders, sexually violent predators, and child predators who are residing in the parish and who are active sex offender registrants or active child predator registrants in the respective parishes according to the State Sex Offender and Child Predator Registry. These funds shall be used to cover the costs associated with sex offender registration and compliance. Population data necessary to implement the provisions of this Subparagraph shall be as compiled and certified by the undersecretary of the Department of Public Safety and Corrections on the first day of June of each year. No later than thirty days after the Revenue Estimating Conference recognizes the prior year fund balance, the office of the attorney general shall make these distributions, which are based on the data certified by the undersecretary of the Department of Public Safety and Corrections, to the recipient sheriffs who are actively registering offenders pursuant to this Paragraph.

NOTE: Subsubparagraph (F)(3)(e) as amended by Acts 2018, No. 612, and Acts 2019, No. 404, eff. July 1, 2020.

            (e) After providing for the allocations in Subsubparagraphs (a), (b), (c), and (d) of this Subparagraph, the remainder of the residual monies in the Sex Offender Registry Technology Dedicated Fund Account shall, pursuant to an appropriation to the office of the attorney general, be distributed to the sheriff of each parish, based on the population of convicted sex offenders, sexually violent predators, and child predators who are residing in the parish and who are active sex offender registrants or active child predator registrants in the respective parishes according to the State Sex Offender and Child Predator Registry. These funds shall be used to cover the costs associated with sex offender registration and compliance. Population data necessary to implement the provisions of this Subparagraph shall be as compiled and certified by the undersecretary of the Department of Public Safety and Corrections on the first day of June of each year. No later than thirty days after the Revenue Estimating Conference recognizes the prior year account balance, the office of the attorney general shall make these distributions, which are based on the data certified by the undersecretary of the Department of Public Safety and Corrections, to the recipient sheriffs who are actively registering offenders pursuant to this Paragraph.

            Acts 1983, No. 13, §1; Acts 1984, No. 940, §1; Acts 1984, No. 136, §1; Acts 1985, No. 863, §1, eff. July 23, 1985; Acts 1986, No. 745, §1; Acts 1987, No. 59, §1; Acts 1988, No. 208, §1; Acts 1989, No. 832, §1; Acts 1990, No. 53, §1; Acts 1990, No. 89, §1; Acts 1990, No. 188, §1; Acts 1994, 3rd Ex. Sess., No. 60, §1; Acts 1998, 1st Ex. Sess., No. 138, §1; Acts 1999, No. 587, §1; Acts 2000, 1st Ex. Sess., No. 84, §1; Acts 2001, No. 964, §1; Acts 2006, No. 502, §1; Acts 2006, No. 663, §4, eff. June 29, 2006; Acts 2007, No. 460, §1, eff. July 11, 2007; Acts 2010, No. 760, §1; Acts 2011, No. 218, §1; Acts 2011, No. 219, §1; Acts 2014, No. 524, §5; Acts 2014, No. 631, §1; Acts 2016, No. 601, §5, eff. June 17, 2016; Acts 2017, No. 260, §1, eff. Aug. 1, 2018; Acts 2018, No. 137, §1, eff. Aug. 1, 2018; Acts 2018, No. 267, §2; Acts 2018, No. 612, §19, eff. July 1, 2020; Acts 2018, No. 668, §4, eff. Aug. 1, 2018; Acts 2019, No. 404, §§1, 14,15, and 19 eff. July 1, 2020; Acts 2019, No. 253, §2.

            NOTE: See Acts 2018, No. 612 and Acts 2019, No. 404 providing for the effects of the conversion of certain dedicated funds to special statutorily dedicated fund accounts.

Art. 895.2. Probation;  restitution for values of wildlife

A.  In all cases in which the defendant has been convicted of a crime which involves the illegal taking of wild birds, wild quadrupeds, or fish or other aquatic life in violation of the provisions of Title 56 of the Louisiana Revised Statutes of 1950 or of any rules and regulations promulgated thereunder, or any rules and regulations adopted by the Louisiana Wildlife and Fisheries Commission, the court shall, as a condition of probation, order civil restitution to the state of Louisiana, Department of Wildlife and Fisheries Conservation Fund, for the value of the said wild birds, wild quadrupeds, or fish or other aquatic life illegally taken.  This restitution shall be in accordance with a schedule of wildlife and aquatic life species values promulgated by the Louisiana Wildlife and Fisheries Commission in accordance with the Administrative Procedure Act.

B.  If any assessment of civil penalties has been paid in full to the Department of Wildlife and Fisheries, then the court shall not order the restitution provided for in Paragraph A as a condition of probation.

Acts 1988, No. 169, §1; Acts 2001, No. 804, §1.

Art. 895.3. Probationer transferred between states;  fees

The collection of the supervision fee imposed pursuant to Articles 895 and 895.1 shall be suspended upon the transfer of an offender to another state for probation supervision in that state, pursuant to the provisions of the interstate compact for out of state parolee supervision as provided in R.S. 15:574.14.

Acts 1991, No. 119, §2.

Art. 895.4. Probation;  fees;  certified crime stoppers organizations

A.  Legislative intent

(1)  The legislature hereby declares that the intention of the legislature in enacting the provisions of this Article is to establish a procedure for raising revenue for the funding of certain operations of certified crime stoppers organizations and to ensure that the procedure established in this Article complies with the requirements of the Louisiana Constitution, and the pronouncements of the Louisiana Supreme Court concerning those requirements, which govern the collection and expenditure of statutory assessments, including fees and costs of court, which are imposed in criminal cases.

(2)  The legislature hereby recognizes the pronouncements of the Louisiana Supreme Court which hold that in order to comply with the requirements of the Louisiana Constitution, revenues which are raised through statutory assessments, including fees and costs of court, which are imposed in criminal cases must reasonably be related to the costs of administering the criminal justice system.  The legislature hereby declares that the crime stoppers activities of paying rewards, of operating hotlines, and of obtaining information on criminal activities are directly related to the administration of the criminal justice system and that the revenues which are raised under the provisions of this Article and which are used for those purposes are directly related to the costs of administering the criminal justice system.

(3)  The legislature hereby declares that the intention of the legislature in enacting the provisions of this Article which require certified crime stoppers organizations which apply for these funds to be certified to the local courts by the local sheriff or chief of police, and the provisions of this Article which exclude statewide officials from certifying statewide organizations under the provisions of this Article, is to provide that local revenues which are raised through local courts will be subject to local control in order to ensure that those revenues will be expended for purposes which are directly related to the costs of administering the local criminal justice system.

B.  As used in this Article, the following words shall have the following meanings ascribed to them:

(1)  "Certified crime stoppers organization" means an organization which is certified as a certified crime stoppers organization by a certifying officer in accordance with the provisions of this Article.

(2)  "Certifying officer" means a sheriff or a chief of police who is authorized by the provisions of this Article to certify one or more organizations as certified crime stoppers organizations.  "Certifying officer" does not include any official other than a sheriff or a chief of police who is authorized by the provisions of this Article to certify one or more organizations as certified crime stoppers organizations and specifically does not include any statewide official.

(3)  "Court" means any district court or any parish court, city court, mayor's court, magistrate court, traffic court, or other trial court of limited jurisdiction which has jurisdiction over criminal or traffic matters.

(4)  "Criminal offense" means any violation of any felony or misdemeanor criminal law or any violation of any criminal ordinance.

(5)  "Privileged communication" means a statement by any person, in any manner whatsoever, to a certified crime stoppers organization for the purpose of reporting alleged criminal activity.

(6)  "Traffic offense" means any violation of any traffic law or any traffic ordinance.

C.  The sheriff in each parish, other than the parish of Orleans, may certify one or more organizations as certified crime stoppers organizations for the district court for that parish and for each other court in that parish for which the sheriff serves as executive officer.

D.  The chief of the police department in each municipality, other than the city of New Orleans, which has a municipal, city, mayor's, magistrate, traffic, or other trial court of limited jurisdiction which has jurisdiction over criminal or traffic matters may certify one or more organizations as certified crime stoppers organizations for each court in that municipality.

E.  In the parish of Orleans and the city of New Orleans, the chief of the New Orleans Police Department may certify one or more organizations as certified crime stoppers organizations for the Criminal District Court for the parish of Orleans, or for each trial court of limited jurisdiction in that parish and municipality which has jurisdiction over criminal or traffic matters, or for any combination of those courts.

F.  In order to be certified as a certified crime stoppers organization for the purposes of this Article, the organization:

(1)  Must be incorporated as a not-for-profit corporation.

(2)  Must be qualified by the United States Internal Revenue Service as a not-for-profit corporation for the purposes of the United States Internal Revenue Code.

(3)  Must be incorporated for the purpose of accepting funds raised under the provisions of this Article and for expending those funds for the purposes set forth in Paragraph L of this Article.

(4)  Must be incorporated for the purpose of accepting funds from sources other than this Article, including donations to the organization, and for expending those funds for any lawful purpose, including  the purposes set forth in Paragraph L of this Article.

(5)  Must be incorporated for the purpose of forwarding to the appropriate law enforcement agency any and all information concerning criminal activity which the organization receives from any source.

(6)  Must establish and follow written standard operating procedures, directives, and policies.

(7)  Should enter into a written agreement or memorandum of understanding with each law enforcement agency with which the organization has a relationship.  Each written agreement or memorandum of understanding should define the procedures which should be used in the relationship and the duties and responsibilities of each of the parties to the relationship.

(8)  Should not have voting members of the board of directors of the organization who are active law enforcement officers, or representatives or employees of the criminal justice system, or government employees or officials.

(9)  Must establish procedures for determining fair rewards, for the payment of those rewards, and for protecting the anonymity of the persons who provide information and receive awards.

(10)  Must pay rewards for information which leads to the arrest of a suspect, or the filing of criminal charges, by indictment or bill of information, against a suspect.  The payment of a reward by the organization should not require a criminal conviction of a suspect.

(11)  Must maintain statistical data as to:

(a)  The number and the amounts of rewards that are paid by the organization.

(b)  The results which are obtained through the use of the information which was provided to law enforcement agencies by the organization, including the number and nature of the criminal charges which were filed, the type and the value of any controlled dangerous substances which were seized, and the type and the value of any stolen property which was recovered.

G.  Each certifying officer shall use the following guidelines in determining which organizations, if any, to certify as certified crime stoppers organizations:

(1)  The length of time for which the organization has existed.

(2)  The relationship of the board of directors of the organization to the community which will be served by the organization.

(3)  The demonstrated ability of the organization to raise funds for crime stoppers purposes.

(4)  The demonstrated ability of the organization to use the funds which it raises to obtain information which leads to arrests or indictments, or both, for violations of criminal laws or ordinances.

H.  Each certifying officer who certifies more than one organization as a certified crime stoppers organization shall determine how the funds raised through the courts for which those organizations are certified shall be allocated between or among those organizations.  Each certifying officer shall use the guidelines set forth in Paragraph G of this Article in determining how those funds shall be allocated.  In addition, when a certifying officer certifies an organization as a certified crime stoppers organization and that organization exists for the purpose of obtaining information about a specific type of criminal activity, the certifying officer may determine that only funds which are raised from convictions for violations of that specific type of criminal activity shall be allocated to that organization.

I.  When a defendant in a criminal or traffic matter is convicted of any criminal offense or of any traffic offense in any court for which the appropriate certifying officer has certified one or more organizations as certified crime stoppers organizations, the court shall assess an additional cost of court for each offense for which the defendant is convicted.  This cost of court shall be in the amount of two dollars and shall be in addition to all other fines, penalties, and costs imposed by the court.  The court shall not suspend the payment of this cost of court.

J.  The court shall pay the proceeds from the additional cost of court to the certified crime stoppers organization each month.   If an appropriate certifying officer has certified more than one organization as a certified crime stoppers organization for a court, the court shall distribute the proceeds from the additional cost of court between or among those certified crime stoppers organizations in accordance with the determination of the allocation of those funds by the appropriate certifying officer.

K.  All funds received by a certified crime stoppers organization under this Article shall be deposited into a separate account and shall be kept separate and apart from the other funds of the certified crime stoppers organization.

L.  All funds received by a certified crime stoppers organization under this Article shall be used solely for the purposes of paying rewards to individuals who provide information on criminal activity to the certified crime stoppers organization, for the operation of a hot line used for receiving that information, and for other purposes which are directly related to obtaining information on criminal activities.

M.  All funds received by a certified crime stoppers organization from sources other than this Article, including donations to the organization, may be expended for any lawful purpose, including the purposes set forth in Paragraph L above.

N.  The legislative auditor shall have oversight over all funds which are raised, allocated, distributed, and expended under the provisions of this Article.

O.  No person shall be required to disclose, by way of testimony or otherwise, a privileged communication between a person who submits a report of alleged criminal activity to a certified crime stoppers organization and the person who accepts the report on behalf of a certified crime stoppers organization or to produce, under subpoena, any records, documentary evidence, opinions, or decisions relating to such privileged communication in connection with any criminal case or proceeding or by way of any discovery procedure.

P.  Any person arrested or charged with a criminal offense may petition the court for an in-camera inspection of the records of a privileged communication concerning such person made to a certified crime stoppers organization.  The petition shall allege facts showing that such records would provide evidence which would be favorable to the defendant and which would be relevant to the issues of the guilt or punishment of the defendant.  If the court determines that the defendant is entitled to all or any part of such records, the court may order production and disclosure as it deems appropriate.

Q.  The provisions of this Article are not intended and shall not be interpreted to adversely affect any party to any communication which is a privileged communication under the provisions of R.S. 15:477.1, regardless of whether the communication was made to a certified crime stoppers organization which is certified under the provisions of this Article or to a crime stoppers organization which is not certified under the provisions of this Article.

Acts 1991, No. 921, §1; Acts 2002, No. 50, §1; H.C.R. No. 190, 2003 R.S., eff. June 21, 2003; Acts 2004, No. 337, §1.

Art. 895.5. Restitution recovery division;  district attorneys;  establishment

            A. Restitution recovery division. Notwithstanding any other provision of law to the contrary, each district attorney may establish a special division in the office designated as the "restitution recovery division" for the administration, collection, and enforcement of victim restitution, victim compensation assessments, probation fees, and payments in civil or criminal proceedings ordered by the court and payable to the state or to crime victims, judgments entered which have not been otherwise vacated, or judicial relief given from the operation of the order or judgment.

            B. Notification to district attorneys of nonpayment of restitution. The Department of Public Safety and Corrections, division of probation and parole, may notify the district attorney in writing when any probation fees, victim's restitution, victim's compensation, or like payments to any civil or criminal proceeding ordered by the court to be paid to the division have not been paid or are in default for a period of ninety days or more, and the default has not been vacated. Upon written notification to the district attorney, the restitution recovery division of the office of the district attorney may collect or enforce the collection of any funds that have not been paid or that are in default which, at the discretion of the district attorney, are appropriate to be processed.

NOTE: Paragraph C eff. until Aug. 1, 2021. See Acts 2017, No. 260; Acts 2018, No. 137 and No. 668; and Acts 2019, No. 253.

            C. Compliance enforcement. The district attorney may take all lawful action necessary to require compliance with court-ordered payments, including filing a petition for revocation of probation, filing a petition to show cause for contempt of court, or institution of any other civil or criminal proceedings which may be authorized by law or by rule of court. In addition, the district attorney may issue appropriate notices to inform the defendant of his noncompliance and of the penalty for noncompliance. In the event that the district attorney institutes any other civil or criminal proceedings pursuant to this Paragraph, the defendant shall be charged costs of court and such costs shall be added to the amount due.

NOTE: Paragraph C as amended by Acts 2017, No. 260, eff. Aug. 1, 2021. See Acts 2018, No. 137 and No. 668 and Acts 2019, No. 253.

            C. Compliance enforcement. (1) Except as provided in Subparagraph (2) of this Paragraph, the district attorney may take all lawful action necessary to require compliance with court-ordered payments, including filing a petition for revocation of probation, filing a petition to show cause for contempt of court, or institution of any other civil or criminal proceedings which may be authorized by law or by rule of court. In addition, the district attorney may issue appropriate notices to inform the defendant of his noncompliance and of the penalty for noncompliance. In the event that the district attorney institutes any other civil or criminal proceedings pursuant to this Paragraph, the defendant shall be charged costs of court and such costs shall be added to the amount due.

            (2) If a court authorizes a payment plan to collect financial obligations associated with a criminal case and the defendant fails to make a payment, the court shall serve the defendant with a citation for a rule to show cause why the defendant should not be found in contempt of court for failure to comply with the payment plan. This citation shall include the following notice:

            "If you make a payment toward the above listed fines and fees on or before ____________, you will not have to come to court for this matter.

IMPORTANT NOTICE REGARDING THE HEARING ON THE RULE TO SHOW CAUSE FOR PROOF OF SATISFACTION OF FINANCIAL OBLIGATION:"

            (a) At the rule to show cause hearing, the court will evaluate your ability to pay the fines and fees listed above.

            (b) You are ordered to bring any documentation or information that you want the court to consider in determining your ability to pay.

            (c) Your failure to make a payment toward the ordered financial obligation may result in your incarceration only if the court finds, after a hearing, that you had the ability to pay and willfully refused to do so.

            (d) You have the right to be represented by counsel (attorney/lawyer) of your choice. If you cannot afford counsel, you have the right to be represented by a court-appointed lawyer at no cost to you. However, you must apply for a court-appointed lawyer at least seven (7) days before this court date by going to the public defender's office. There is a forty-dollar ($40) application fee.

            (e) If you are unable to make a payment toward the ordered financial obligation, you may request payment alternatives including but not limited to community service, a reduction of the amount owed, or both.

            (f) During the hearing, you will have a meaningful opportunity to explain why you have not paid the above-listed amounts by presenting evidence and testimony."

            (3) If after the hearing provided for by Subparagraph (2) of this Paragraph, the court continues to authorize a payment plan, the defendant shall be served with the same notice provided for in Subparagraph (2) of this Paragraph regarding the consequences and due process for the willful failure to pay.

            D. Collection fee. As provided for in Paragraph A of this Article, when an amount payable to the state or to a crime victim has not been satisfied in accordance with Article 888, or when a matter has been transferred to the district attorney as provided in Paragraph B of this Article, the district attorney may assess a collection fee of twenty percent of the funds due, which shall be added to the amount of funds due. Any fees collected pursuant to this Paragraph shall be distributed to the district attorney's restitution recovery division to be expended for lawful purposes for the operation of the office of the district attorney. Funds provided to the district attorney by this provision shall not reduce the amount payable to the district attorney under any other provision of law or reduce or affect the amounts of funding allocated by law to the budget of the district attorney. The funds shall be audited as other state funds are audited. This provision shall not affect the right of the office of the district attorney to proceed with the prosecution of any violation as currently provided by law.

            E. Intent. The provisions of this Article are supplemental to any procedures for the enforcement and collection of any sums or forfeitures ordered by the court and shall not be construed to repeal any law not in direct conflict with this provision.

            Acts 2009, No. 164, §1; Acts 2012, No. 531, §1, eff. June 5, 2012; Acts 2017, No. 260, §1, eff. Aug. 1, 2018; Acts 2018, No. 137, §1, eff. Aug 1, 2018; Acts 2018, No. 668, §4, eff. Aug. 1, 2018; Acts 2019, No. 253, §2.

Art. 895.6. Compliance credits;  probation

            A.(1) Except as provided in Subparagraph (2) of this Paragraph, every defendant on felony probation pursuant to Article 893 for an offense other than a crime of violence as defined in R.S. 14:2(B) or a sex offense as defined in R.S. 15:541 shall be eligible to earn a diminution of probation term, to be known as "earned compliance credits", by good behavior, in accordance with the procedure provided in Article 893. The amount of diminution of probation term allowed under this Article shall be at the rate of thirty days for every full calendar month on probation.

            (2) A defendant who is ordered by the court to enter and complete a specialty court program is not eligible to receive earned compliance credits pursuant to the provisions of this Article. For purposes of this Article, "specialty court program" includes any of the following: a program provided by the drug division of the district court pursuant to R.S. 13:5301, an established driving while intoxicated court or sobriety court program, a mental health court program established pursuant to R.S. 13:5351 et seq., a Veterans Court program established pursuant to R.S. 13:5361 et seq., a reentry court established pursuant to R.S. 13:5401, or the Swift and Certain Probation Pilot Program established pursuant to R.S. 13:5371.

            B.(1) If the defendant's probation and parole officer has reasonable cause to believe that a defendant on felony probation has not been compliant with the conditions of his probation in a given calendar month, he may rescind thirty days of earned compliance credits as an administrative sanction pursuant to Article 899.2. Credits may be rescinded only for a month in which the defendant is found not to be in compliance.

            (2) Notwithstanding any other provision of law to the contrary, the provisions of Article 899.2(A)(3) requiring consent of the defendant shall not apply to the rescinding of earned compliance credits as an administrative sanction under Article 899.2.

            C. The Department of Public Safety and Corrections shall develop written policies and procedures for the implementation of earned compliance credits for defendants on felony probation supervision provided for by the provisions of this Article. The policies and procedures shall include but not be limited to written guidelines regarding the process to rescind earned compliance credits, and the placement of these credits in the administrative sanctions grid. The Department of Public Safety and Corrections shall also collect data on the implementation of earned compliance credits, including the names of defendants that earned credits, how many credits are applied to each defendant, and reductions to supervision periods at the time of discharge.

            D. When a defendant's total probation term is satisfied through a combination of time served on felony probation and earned compliance credits, the Department of Public Safety and Corrections shall order the termination of the probation of the defendant.

            Acts 2017, No. 280, §1, eff. November 1, 2017; Acts 2018, No. 508, §1; Acts 2018, No. 668, §2.

Art. 896. Modifying or changing conditions of probation

A.  The court may, at any time during the probation period, modify, change, or discharge the conditions of probation when either of the following occur:

(1)  The state has previously provided written verification that it has no opposition to a modification, change, or discharge of the conditions of probation.

(2)  A contradictory hearing with the state, set by the court, has been held. The court shall provide notice of the hearing to the state at least fifteen days prior to the hearing date.

B.  The court may, at any time during the probation period, impose additional conditions of probation authorized by Article 895 of this Code without a contradictory hearing with the state.

Acts 2014, No. 275, §1.

Art. 897. Termination of probation or suspended sentence;  discharge of defendant

A.  In a felony case, the court may terminate the defendant's probation, early or as unsatisfactory, and discharge him at any time after the expiration of one year of probation when either of the following occur:

(1)  The state has previously provided written verification that it has no opposition to the termination of the probation.

(2)  A contradictory hearing with the state, set by the court, has been held.  The court shall provide notice of the hearing to the state at least fifteen days prior to the hearing date.

B.  In a misdemeanor case, the court may terminate the defendant's suspended sentence or probation and discharge him at any time when all of the following conditions are met:

(1)  The termination or discharge is ordered in open court.

(2)  The state is present at the time the termination or discharge is ordered and has been afforded an opportunity to participate in a contradictory hearing on the matter.

Acts 2014, No. 275, §1.

Art. 898. Satisfaction of suspended sentence and probation

Upon completion of the period of suspension of sentence or probation, or an earlier discharge of the defendant pursuant to Article 897, the defendant shall have satisfied the sentence imposed.  Where part of a sentence is suspended, this provision shall not apply until the unsuspended part has been satisfied.

Art. 899. Arrest or summons for violation of probation

A.  At any time during probation and suspension of sentence the court may issue a warrant for the arrest of a defendant for violation of any of the conditions of probation, or may issue a summons to appear to answer to a charge of violation or threatened violation.

The warrant of arrest may be executed by any peace officer and shall direct that the defendant be returned to the custody of the court or to a designated detention facility.  The summons shall be personally served upon the defendant.

B.  If a probation officer has reasonable cause to believe that a defendant has violated or is about to violate a condition of his probation or that an emergency exists so that awaiting an order of the court would create an undue risk to the public or to the probationer, the probation officer may arrest the defendant without a warrant, or may authorize a peace officer to do so.  The authorization may be in writing or oral, but if not written, shall be subsequently confirmed by a written statement.  The written authorization or subsequent confirmation delivered with the defendant to the official in charge of a parish jail or other place of detention shall be sufficient authority for the detention of the defendant.  The probation officer shall immediately notify the proper court of the arrest and shall submit a written report showing in what manner the defendant violated, or was about to violate, a condition of his probation.

C.  The court may grant bail to a defendant who is arrested under this article.

D.  When a warrant for a defendant's arrest or a summons for defendant's appearance is issued under Paragraph A or a detainer is issued under Paragraph B of this Article, the running of the period of probation shall cease as of the time the warrant, summons, or detainer is issued.

E.  Within ten days following the arrest of an offender pursuant to the provisions of this Article, the court shall determine if there is probable cause to detain him pending a final violation hearing and shall consider whether to allow the offender bail pending the final hearing.  The determination of probable cause may be made without a formal hearing and may be conducted through the use of affidavits.

F.  Probation officers shall be deemed to be peace officers and shall have the same powers with respect to criminal matters and the enforcement of the law relating thereto as sheriffs, constables, and police officers have in their respective jurisdictions.  They have all the immunities and defenses now or hereafter made available to sheriffs, constables, and police officers in any suit brought against them in consequence of acts done in the course of their employment.

Amended by Acts 1974, No. 109, §1; Acts 1977, No. 464, §1; Acts 1985, No. 930, §1, eff. July 23, 1985; Acts 2010, No. 352, §1; Acts 2010, No. 924, §1, eff. July 2, 2010.

Art. 899.1. Administrative sanctions for technical violations;  crimes of violence and sex offenses

            A. At the time of sentencing for a crime of violence as defined by R.S. 14:2(B) or a sex offense as defined by R.S. 15:541, the court may make a determination as to whether a defendant is eligible for the imposition of administrative sanctions as provided for in this Article. If authorized to do so by the sentencing court, each time a defendant violates a condition of his probation, a probation agency may use administrative sanctions to address a technical violation committed by a defendant when all of the following occur:

            (1) The defendant, after receiving written notification of the right to a hearing before a court and the right to counsel provides a written waiver of a probation violation hearing.

            (2) The defendant admits to the violation or affirmatively chooses not to contest the violation alleged in the probation violation report.

            (3) The defendant consents to the imposition of administrative sanctions by the Department of Public Safety and Corrections.

            B. The department shall promulgate rules to implement the provisions of this Article to establish the following:

            (1) A system of structured, administrative sanctions which shall be imposed for technical violations of probation and which shall take into consideration the following factors:

            (a) The severity of the violation behavior.

            (b) The prior violation history.

            (c) The severity of the underlying criminal conviction.

            (d) The criminal history of the probationer.

            (e) Any special circumstances, characteristics, or resources of the probationer.

            (f) Protection of the community.

            (g) Deterrence.

            (h) The availability of appropriate local sanctions, including but not limited to jail, treatment, community service work, house arrest, electronic surveillance, restitution centers, work release centers, day reporting centers, or other local sanctions.

            (2) Procedures to provide a probationer with written notice of the right to a probation violation hearing to determine whether the probationer violated the conditions of probation alleged in the violation report and the right to be represented by counsel at state expense at that hearing if financially eligible.

            (3) Procedures for a probationer to provide written waiver of the right to a probation violation hearing, to admit to the violation or affirmatively choose not to contest the violation alleged in the probation violation report, and to consent to the imposition of administrative sanctions by the department.

            (4) The level and type of sanctions that may be imposed by probation officers and other supervisory personnel.

            (5) The level and type of violation behavior that warrants a recommendation to the court that probation be revoked.

            (6) Procedures notifying the probationer, the district attorney, the defense counsel of record, and the court of probation of a violation admitted by the probationer and the administrative sanctions imposed.

            (7) Such other policies and procedures as are necessary to implement the provisions of this Article and to provide adequate probation supervision.

            C. If the administrative sanction imposed pursuant to the provisions of this Article is jail confinement, the confinement shall not exceed ten days per violation and shall not exceed a total of sixty days per year.

            D. For purposes of this Article, "technical violation" means any violation of a condition of probation, except for an allegation of a subsequent criminal act. Notwithstanding any provision of law to the contrary, if the subsequent alleged criminal act is misdemeanor possession of marijuana or tetrahydrocannabinol, or chemical derivatives thereof, as provided in R.S. 40:966(E)(1), it shall be considered a "technical violation".

            Acts 2011, No. 104, §2; Acts 2014, No. 633, §1; Acts 2017, No. 280, §1, eff. November 1, 2017.

Art. 899.2. Administrative sanctions for technical violations;  offenses other than crimes of violence or sex offenses

            A. Each time a defendant on probation for a crime other than a crime of violence as defined in R.S. 14:2(B) or a sex offense as defined in R.S. 15:541 violates a condition of his probation, a probation agency is authorized to use administrative sanctions to address a technical violation committed by a defendant when all of the following occur:

            (1) The defendant, after receiving written notification of the right to a hearing before a court and the right to counsel provides a written waiver of a probation violation hearing.

            (2) The defendant admits to the violation or affirmatively chooses not to contest the violation alleged in the probation violation report.

            (3) The defendant consents to the imposition of administrative sanctions by the Department of Public Safety and Corrections.

            B. The department shall promulgate rules to implement the provisions of this Article to establish the following:

            (1) A system of structured, administrative sanctions which shall be imposed for technical violations of probation and which shall take into consideration the following factors:

            (a) The severity of the violation behavior.

            (b) The prior violation history.

            (c) The severity of the underlying criminal conviction.

            (d) The criminal history of the probationer.

            (e) Any special circumstances, characteristics, or resources of the probationer.

            (f) Protection of the community.

            (g) Deterrence.

            (h) The availability of appropriate local sanctions, including but not limited to jail, treatment, community service work, house arrest, electronic surveillance, restitution centers, work release centers, day reporting centers, or other local sanctions.

            (2) Procedures to provide a probationer with written notice of the right to a probation violation hearing to determine whether the probationer violated the conditions of probation alleged in the violation report and the right to be represented by counsel at state expense at that hearing if financially eligible.

            (3) Procedures for a probationer to provide written waiver of the right to a probation violation hearing, to admit to the violation or affirmatively choose not to contest the violation alleged in the probation violation report, and to consent to the imposition of administrative sanctions by the department.

            (4) The level and type of sanctions that may be imposed by probation officers and other supervisory personnel.

            (5) The level and type of violation behavior that warrants a recommendation to the court that probation be revoked.

            (6) Procedures notifying the probationer, the district attorney, the defense counsel of record, and the court of probation of a violation admitted by the probationer and the administrative sanctions imposed.

            (7) Such other policies and procedures as are necessary to implement the provisions of this Article and to provide adequate probation supervision.

            C. If the administrative sanction imposed pursuant to the provisions of this Article is jail confinement, the confinement shall not exceed ten days per violation and shall not exceed a total of sixty days per year.

            D. For purposes of this Article, "technical violation" means any violation of a condition of probation, except that it does not include any of the following:

            (1) An allegation of a criminal act that is subsequently proven to be a felony.

            (2) An allegation of a criminal act that is subsequently proven to be an intentional misdemeanor directly affecting the person.

            (3) An allegation of a criminal act pursuant to R.S. 14:2(B).

            (4) An allegation of a criminal act pursuant to R.S. 15:541.

            (5) An allegation of domestic abuse battery pursuant to R.S. 14:35.3 committed by one family member or household member against another, or battery committed by one dating partner as defined by R.S. 46:2151 against another.

            (6) An allegation of a violation of a protective order, pursuant to R.S. 14:79, issued against the offender to protect a family member or household member as defined by R.S. 14:35.3, or a dating partner as defined by R.S. 46:2151.

            (7) Being in possession of a firearm or other prohibited weapon.

            (8) Absconding from the jurisdiction of the court by leaving the state without the prior approval of the probation and parole officer.

            Acts 2017, No. 280, §1, eff. November 1, 2017; Acts 2018, No. 668, §2, eff. Aug. 1, 2018.

Art. 900. Violation hearing;  sanctions

            A. After an arrest pursuant to Article 899, the court shall cause a defendant who continues to be held in custody to be brought before it within thirty days for a hearing. If a summons is issued pursuant to Article 899, or if the defendant has been admitted to bail, the court shall set the matter for a violation hearing within a reasonable time. The hearing may be informal or summary. The defendant may choose, with the court's consent, to appear at the violation hearing and stipulate the revocation by simultaneous audio-visual transmission in accordance with the provisions of Article 562. If the court decides that the defendant has violated, or was about to violate, a condition of his probation it may:

            (1) Reprimand and warn the defendant.

            (2) Order that supervision be intensified.

            (3) Add additional conditions to the probation.

            (4) Order the defendant, as an additional condition of probation, to be committed to a community rehabilitation center operated by, or under contract with, the Department of Public Safety and Corrections for a period of time not to exceed six months, without benefit of parole or good time, if:

            (a) There is bed space available.

            (b) The offender has been sentenced to the department, and the sentence has been suspended pursuant to Article 893.

            (c) Such commitment does not extend the period of probation beyond the maximum period of probation provided by law.

            (d) The violation of probation did not involve the commission of another felony.

            (e) The placement in a community rehabilitation center is recommended by the division of probation and parole.

            (5) Order that the probation be revoked. In the event of revocation the defendant shall serve the sentence suspended, with or without credit for the time served on probation at the discretion of the court. If the imposition of sentence was suspended, the defendant shall serve the sentence imposed by the court at the revocation hearing.

            (6)(a) Notwithstanding the provisions of Subparagraph (5) of this Paragraph, any defendant who has been placed on probation by the drug division probation program pursuant to R.S. 13:5304, and who has had his probation revoked under the provisions of this Article for a technical violation of drug division probation as determined by the court, may be ordered to be committed to the custody of the Department of Public Safety and Corrections and be required to serve a sentence of not more than twelve months without diminution of sentence in the intensive incarceration program pursuant to the provisions of R.S. 15:574.4.4. Upon successful completion of the program, the defendant shall return to active, supervised probation with the drug division probation program for a period of time as ordered by the court, subject to any additional conditions imposed by the court and under the same provisions of law under which the defendant was originally sentenced. If an offender is denied entry into the intensive incarceration program for physical or mental health reasons or for failure to meet the department's suitability criteria, the department shall notify the sentencing court for resentencing in accordance with the provisions of Article 881.1.

            (b) Notwithstanding the provisions of Subparagraph (5) of this Paragraph, any defendant who has been placed on probation by the court for the conviction of an offense other than a crime of violence as defined in R.S. 14:2(B) or of a sex offense as defined by R.S. 15:541, and who has been determined by the court to have committed a technical violation of his probation, shall be required to serve, without diminution of sentence, as follows:

            (i) For a first technical violation, not more than fifteen days.

            (ii) For a second technical violation, not more than thirty days.

            (iii) For a third or subsequent technical violation, not more than forty-five days.

            (iv) For a fourth or subsequent violation, the court may order that the probation be revoked, in accordance with Subparagraph (5) of this Paragraph.

            (v) For custodial substance abuse treatment programs, not more than ninety days.

            (c) The defendant shall be given credit for time served prior to the revocation hearing for time served in actual custody while being held for a technical violation in a local detention facility, state institution, or out-of-state institution pursuant to Article 880. The term of the revocation for a technical violation shall begin on the date the court orders the revocation. Upon completion of the imposed sentence for the technical revocation, the defendant shall return to active and supervised probation for a period equal to the remainder of the original period of probation subject to any additional conditions imposed by the court.

            (d) A "technical violation", as used in this Paragraph, means any violation except it shall not include any of the following:

            (i) An allegation of a criminal act that is subsequently proven to be a felony.

            (ii) An allegation of a criminal act that is subsequently proven to be an intentional misdemeanor directly affecting the person.

            (iii) An allegation of a criminal act that is subsequently proven to be a violation of a protective order, pursuant to R.S. 14:79, issued against the offender to protect a family member or household member as defined by R.S. 14:35.3, or dating partner as defined by R.S. 46:2151.

            (iv) Being in possession of a firearm or other prohibited weapon.

            (v) Absconding from the jurisdiction of the court.

            (7) Extend the period of probation, provided the total amount of time served by the defendant on probation for any one offense shall not exceed the maximum period of probation provided by law.

            B. When a defendant has been committed to a community rehabilitation center pursuant to Subparagraph (A)(4) of this Article, upon written request of the department that an offender be removed for violating the rules or regulations of the community rehabilitation center, the court shall cause the defendant to be brought before it and order that probation be revoked with credit for the time served in the community rehabilitation center.

            C. The department may pay a per diem for offenders placed in a community rehabilitation center pursuant to the provisions of Subparagraph (A)(4) of this Article.

            D. When a court considers the revocation of probation, the court shall consider aggravating and mitigating circumstances in the case, including but not limited to the circumstances stated in Article 894.1. If the court revokes the probation of the defendant, the court shall issue oral or written reasons for revocation which shall be entered into the record. The oral or written reasons for revocation shall state the allegations made by the probation officer concerning a violation or threatened violation of the conditions of probation, the findings of the court concerning those allegations, the factual basis or bases for those findings, and the aggravating circumstances, or mitigating circumstances, or both, considered by the court.

            Amended by Acts 1979, No. 90, §1; Acts 1991, No. 96, §1; Acts 1995, No. 335, §1; Acts 1997, No. 1323, §1; Acts 2006, No. 113, §1; Acts 2007, No. 402, §1; Acts 2009, No. 182, §1; Acts 2010, No. 352, §1; Acts 2011, No. 33, §1; Acts 2014, No. 271, §1; Acts 2014, No. 633, §1; Acts 2016, No. 213, §1; Acts 2017, No. 280, §1, eff. November 1, 2017; Acts 2017, No. 406, §1; Acts 2018, No. 668, §2.

Art. 901. Revocation for commission of another offense

            A. In addition to the grounds for revocation of probation enumerated in Louisiana Code of Criminal Procedure Article 900, when a defendant who is on probation for a felony commits or is convicted of a felony under the laws of this state, or under the laws of another state, the United States, or the District of Columbia, or is convicted of a misdemeanor under the provisions of Title 14 of the Louisiana Revised Statutes of 1950, or is convicted of a misdemeanor under the provisions of the Uniform Controlled Dangerous Substances Law contained in Title 40 of the Louisiana Revised Statutes of 1950, his probation may be revoked as of the date of the commission of the felony or final conviction of the felony or misdemeanor.

            B. When a defendant who is under a suspended sentence or on probation for a misdemeanor commits or is convicted of any offense under the laws of this state, a political subdivision thereof, another state or a political subdivision thereof, the United States, or the District of Columbia, his suspended sentence or probation may be revoked as of the date of the commission or final conviction of the offense.

            C. In cases of revocation provided for in this Article:

            (1) No credit shall be allowed for time spent on probation or for the time elapsed during suspension of the sentence.

             (2) When the new conviction is a Louisiana conviction, the court shall specify in the minutes whether the sentence shall run consecutively or concurrently with the sentence for the new conviction.

            (3) The defendant may be given credit for time served prior to the revocation hearing for time served in actual custody while being held for a probation violation in a local detention facility, state institution, or out-of-state institution pursuant to Article 880.

            Amended by Acts 1975, No. 331, §1; Acts 1977, No. 397, §2; Acts 1981, No. 439, §1; Acts 2016, No. 214, §1.

Art. 901.1. Additional sanctions for probation revocation

            A. Notwithstanding any other provision of law, when a defendant, who is a first offender on probation with a suspended sentence for a term of seven years or less at hard labor, or a second offender on probation and having never served time in a state prison, has his probation revoked for any reason other than a subsequent felony conviction, the court, upon the recommendation of the division of probation and parole, may order that the offender be committed to the Department of Public Safety and Corrections and be considered for participation in the intensive incarceration program as provided for in R.S. 15:574.4.4 or 574.5. If the offender committed to the custody of the department participates in an intensive incarceration program of an eligible parish, the department shall reimburse the sheriff's office of the parish conducting the program in the amount appropriated by the legislature.

            B. If the imposition of the sentence was suspended, the defendant shall serve the sentence imposed by the court at the revocation hearing. If the defendant is a first offender and receives a sentence of seven years or less at hard labor, or a second offender on probation and having never served time in a state prison, the court, upon recommendation of the division of probation and parole, may order that the offender be committed to the department and be considered for participation in the intensive incarceration program as provided for in R.S. 15:574.4.4 or 574.5. If the offender committed to the custody of the department participates in an intensive incarceration program as provided for in R.S. 15:574.5, the department shall reimburse the sheriff's office of the parish conducting the program in the amount appropriated by the legislature.

            Acts 1990, No. 83, §1; Acts 2019, No. 369, §3.

Art. 902. Drug addict;  pre-sentence investigation;  voluntary treatment;  conditions of probation

A.  Upon the rendering of a guilty verdict or judgment, the district attorney, with the written consent of the division of probation and parole, may, by ex parte motion, stating the belief that the defendant is a drug addict, whether the crime charged is related to drug abuse or not, request the court to order the division of probation and parole to conduct a presentence investigation for the purpose of determining whether or not the defendant is a drug addict.  The presentence investigation may be ordered in the discretion of the court.

B.  Upon receiving the report of the presentence investigation, the court may, in its discretion, if it finds probable cause from such report to believe the defendant to be a drug addict, order a contradictory hearing for the purpose of making a judicial determination of such issue.

C.  If, at such contradictory hearing, the court finds that the defendant is a drug addict, and it is the court's desire to suspend any sentence which it may impose and place the defendant on probation, it may require as a condition of probation that the defendant submit to urinalysis or any acknowledged recognized test given at reasonable intervals, not to exceed once a week, and at reasonable times in accordance with the request of the division of probation and parole.  If the defendant refuses to submit to the tests, the sentencing court may revoke the probation.  If the defendant submits to the tests, upon the first instance of a test proving positive for the presence of a controlled dangerous substance, as defined in R.S. 40:963, the sentencing court may commit the defendant to a medical clinic for treatment for a period not to exceed the period of probation.  Upon a second positive result, the sentencing court shall revoke the probation and impose the sentence.

D.  If the conviction is for a violation of the Uniform Controlled Dangerous Substances Law, and the sentence consists of both a fine and imprisonment, the court, if it wishes to suspend the sentence and place the defendant on probation, may, with the consent of the defendant, order that the defendant enter a residential drug treatment facility licensed in accordance with R.S. 40:1058.1 et seq., or R.S. 40:2100 et seq., or one operated by the federal government, and approved by the court.  The defendant's consent in such cases shall include consent to pay the cost of treatment for the duration of time ordered by the court.  The court may, in its discretion, also suspend the payment of the applicable fine in an amount equal to all or some portion of the cost of the ordered treatment.  Upon the successful completion of the treatment program and the termination of probation, the court may order that the fine be reduced in accordance with any amount by which it was reduced.  However, if the defendant does not successfully complete the treatment program, or otherwise violates the conditions of probation, the court shall include among any orders issued, that the defendant pay the entire fine imposed by the court.  Nothing in this Paragraph shall be construed to grant a defendant a right to probation in cases in which probation is otherwise denied by law.

Acts 1972, No. 177, §1; Acts 1990, No. 1035, §1.

Art. 903. Substance abuse probation program;  authorization

            A. The secretary of the Department of Public Safety and Corrections is authorized to establish a substance abuse probation program within the department.

            B. The program shall provide counseling and treatment for defendants with substance abuse disorders, or defendants with co-occurring mental illness and substance abuse disorders, who are sentenced to substance abuse probation pursuant to the provisions of Article 903.2.

            C. The department may enter into cooperative endeavors or contracts with local governmental entities or the office of behavioral health, training facilities, and service providers to provide for substance abuse treatment and counseling and mental health treatment for defendants participating in the program.

            D. The department shall adopt rules and guidelines as it deems necessary for the administration and implementation of this program.

            E. The provisions of this Article shall be implemented only to the extent that funds are available within the department for this purpose and to the extent that is consistent with available resources and appropriate classification criteria.

            Acts 2013, No. 389, §1; Acts 2015, No. 199, §2; Acts 2018, No. 431, §1.

NOTE: Pursuant to the Section 2 of Act No. 199 of the 2015 R.S., the provisions of Articles 903 through 903.3 enacted by Section 4 of Act No. 389 of the 2013 R.S. shall become null, void, and have no effect on August 1, 2020, and thereafter.

Art. 903.1. Substance abuse probation program;  eligibility

            A. In order to be eligible for the substance abuse probation program, the defendant must be charged with a violation of a statute of this state relating to the use and possession of or possession with intent to distribute any narcotic drugs, coca leaves, marijuana, stimulants, depressants, or hallucinogenic drugs, or where there is a significant relationship between the use of alcohol or drugs and the crime before the court.

            B. The provisions of this Article shall not apply to any defendant who has been convicted of a crime of violence as defined in R.S. 14:2(B), except for a first conviction of an offense with a maximum prison sentence of ten years or less that was not committed against a family member or household member as defined by R.S. 14:35.3, or against a dating partner as defined by R.S. 46:2151, or a sex offense as defined in R.S. 15:541, or any defendant who has participated in or declined to participate in a drug division probation program as provided for in R.S. 13:5301 et seq.

NOTE: Pursuant to the Section 2 of Act No. 199 of the 2015 R.S., the provisions of Articles 903 through 903.3 enacted by Section 4 of Act No. 389 of the 2013 R.S. shall become null, void, and have no effect on August 1, 2020, and thereafter.

NOTE: Acts 2013, No. 389, §4 provides that the provisions of the Act shall become null, void, and have no effect on Aug. 1, 2016, and thereafter.

Acts 2013, No. 389, §1; Acts 2015, No. 199, §2; Acts 2017, No. 280, §1, eff. November 1, 2017.

Art. 903.2. Substance abuse probation;  sentencing

            A. Notwithstanding any other provision of law to the contrary, a court shall suspend a sentence and order an eligible defendant to participate in a substance abuse probation program provided by the department pursuant to Article 903 if the district attorney agrees that the defendant should be sentenced to a substance abuse probation and the court finds all of the following:

            (1) The court has reason to believe that the defendant suffers from an addiction to a controlled dangerous substance or any other mental health disorder.

            (2) The defendant is likely to respond to the substance abuse probation program.

            (3) The available substance abuse probation program is appropriate to meet the needs of the defendant.

            (4) The defendant does not pose a threat to the community, and it is in the best interest of justice to provide the defendant with treatment as opposed to incarceration or other sanctions.

            B.(1) The court shall order the department to assign an authorized evaluator to prepare a suitability report. The suitability report shall delineate the nature and degree of the treatment necessary to address the defendant's drug or alcohol dependency or addiction or mental health disorder, the reasonable availability of such treatment, and the defendant's appropriateness for the program. The district attorney and the defendant's attorney shall have an opportunity to provide relevant information to the evaluator to be included in the report.

            (2) The authorized evaluator shall examine the defendant, using standardized testing and evaluation procedures, and shall provide to the court and the district attorney the results of the examination and evaluation along with its recommendation as to whether the defendant is a suitable candidate for the substance abuse probation program.

            (3) If the court determines that the defendant should be enrolled in the substance abuse probation program, the court shall suspend the execution of the sentence and place the defendant on supervised probation under the terms and conditions of the substance abuse probation program.

            (4) The defendant shall be required to participate in alcohol and drug testing at his own expense, unless the court determines that he is indigent. If the court determines that the defendant is indigent, it may order the defendant to perform supervised work for the benefit of the community in lieu of paying all or a part of the costs related to the drug and alcohol testing. The work shall be performed for and under the supervising authority of a parish, municipality, or other political subdivision or agency of the state or a charitable organization that renders service to the community or its residents.

            C. If the judge fails to make all of the determinations provided for in Paragraph A of this Article, or if the district attorney does not agree that the defendant should be sentenced to substance abuse probation, the court shall impose the appropriate sentence provided by law.

            D.(1) If the defendant violates any condition of his probation or if the defendant would benefit from an adjustment to the probation or treatment program, the defendant, the treatment supervisor, the probation officer, the district attorney, or the court, on its own motion, may file a motion to modify the terms and conditions of the probation or file a motion to revoke the defendant's probation. After a contradictory hearing on the motion, the court may do either of the following:

            (a) Modify the conditions of probation, including ordering the defendant to participate in a drug division probation program pursuant to R.S. 13:5301 et seq.

            (b) Revoke the defendant's probation and execute the sentence.

            (2) A defendant placed on probation pursuant to the provisions of this Article shall be subject to the administrative sanctions provided for in Article 899.1.

            (3) If the defendant's probation is revoked, the defendant shall be required to serve the suspended sentence and shall receive credit for time served in any correctional facility for commission of the crime as otherwise allowable by law.

            E. The provisions of Article 893(A) and (E)(1)(b) which prohibit the court from suspending or deferring the imposition of sentences for violations of the Uniform Controlled Dangerous Substances Law or for violations of R.S. 40:966(A), 967(A), 968(A), 969(A), or 970(A) shall not apply to defendants who otherwise meet the eligibility criteria for substance abuse probation programs as authorized by this Article.

            F. The provisions of this Article shall not be construed to limit the authority of the court to defer a sentence for a violation of the Uniform Controlled Dangerous Substances Law as otherwise provided by law.

NOTE: Pursuant to the Section 2 of Act No. 199 of the 2015 R.S., the provisions of Articles 903 through 903.3 enacted by Section 4 of Act No. 389 of the 2013 R.S. shall become null, void, and have no effect on August 1, 2020, and thereafter.

            Acts 2013, No. 389, §1; Acts 2018, No. 431, §1.

Art. 903.3. Substance abuse treatment program;  cost

A.  A defendant who is placed under the supervision of the substance abuse probation program shall pay the cost of the treatment program to which he is assigned and the cost of any additional supervision that may be required to the extent of his financial resources as determined by the substance abuse treatment program.

B.  If the defendant does not have the financial resources to pay all the related costs of the probation program, the court may do either of the following:

(1)  To the extent practicable, arrange for the defendant to be assigned to a treatment program funded by the state or federal government.

(2)  With the recommendation of the treatment program, order the defendant to perform supervised work for the benefit of the community in lieu of paying all or a part of the costs related to his treatment and supervision.  The work shall be performed for and under the supervising authority of a parish, municipality, or other political subdivision or agency of the state or a charitable organization that renders service to the community or its residents.

NOTE:  Acts 2013, No. 389, §4 provides that the provisions of the Act shall become null, void, and have no effect on Aug. 1, 2016, and thereafter.

Acts 2013, No. 389, §1.

Chapter 3. Sentencing in Capital Cases

Art. 905. Capital cases;  sentencing hearing required;  delay;  waiver

A.  Following a verdict or plea of guilty in a capital case, a sentence of death may be imposed only after a sentencing hearing as provided herein.

B.  Following a conviction by trial or guilty plea in a capital case, on joint motion of the state and the defendant, the court may impose a sentence of life imprisonment without benefit of parole, probation, or suspension of sentence without conducting a sentencing hearing.  The court may refuse to grant the joint motion and order that a sentencing  hearing be conducted.

C.  If a sentencing hearing will be conducted, the hearing shall not commence sooner than twelve hours after a verdict or plea of guilty, except on joint motion of the state and the defendant.

Added by Acts 1976, No. 694, §1.  Acts 1993, No. 935, §1; Acts 1995, No. 434, §1.

Art. 905.1. Sentencing hearing jury;  commencement

A.  Except as provided in Part B herein, the sentencing hearing shall be conducted before the same jury that determined the issue of guilt.  The order of sequestration shall remain in effect until the completion of the sentencing hearing.

B.  If an error occurs only during the sentencing hearing which would necessitate the declaration of a mistrial, or the granting of a new trial by the trial court, or if an appellate court finds an error that occurred only in the sentencing hearing which would necessitate a remand and a new trial, then the trial court shall be empowered to empanel a new jury under the same procedure set out in Title XXVI, Chapter 3 of The Louisiana Code of Criminal Procedure for determining only the issue of penalty, and the rule of sequestration shall apply to the new jury so empanelled.

Added by Acts 1976, No. 694, §1.  Amended by Acts 1977, No. 105, §1.

Art. 905.2. Sentencing hearing;  procedure and evidence;  jury instructions

A.  The sentencing hearing shall focus on the circumstances of the offense, the character and propensities of the offender, and the victim, and the impact that the crime has had on the victim, family members, friends, and associates.  The victim or his family members, friends, and associates may decline the right to testify but, after testifying for the state, shall be subject to cross-examination.  The hearing shall be conducted according to the rules of evidence.  Evidence relative to aggravating or mitigating circumstances shall be relevant irrespective of whether the defendant places his character at issue.  Insofar as applicable, the procedure shall be the same as that provided for trial in the Code of Criminal Procedure.  The jury may consider any evidence offered at the trial on the issue of guilt.  The defendant may testify in his own behalf. In the event of retrial, the defendant's testimony shall not be admissible except for the purposes of impeachment.

B.  Notwithstanding any provision to the contrary, the court shall instruct the jury that under the provisions of the state constitution, the governor is empowered to grant a reprieve, pardon, or commutation of sentence following conviction of a crime, and the governor may, in exercising such authority, commute or modify a sentence of life imprisonment without benefit of parole to a lesser sentence including the possibility of parole, and may commute a sentence of death to a lesser sentence of life imprisonment without benefit of parole.  The court shall also instruct the jury that under this authority the governor may allow the release of an offender either by reducing a life imprisonment or death sentence to the time already served by the offender or by granting the offender a pardon.  The defense may argue or present evidence to the jury on the frequency and extent of use by the governor of his authority.  The provisions of this Paragraph shall not be construed to require that members of the Board of Pardons attend sentencing hearings for capital cases.

Added by Acts 1976, No. 694, §1.  Acts 1993, No. 436, §1; Acts 1994, 3rd Ex. Sess., No. 14, §1; Acts 1995, No. 551, §1; Acts 1999, No. 783, §3, eff. Jan. 1, 2000; Acts 2001, No. 280, §1; Acts 2012, No. 106, §1.

Art. 905.3. Sentence of death;  jury findings

A sentence of death shall not be imposed unless the jury finds beyond a reasonable doubt that at least one statutory aggravating circumstance exists and, after consideration of any mitigating circumstances, determines that the sentence of death should be imposed.  The court shall instruct the jury concerning all of the statutory mitigating circumstances.  The court shall also instruct the jury concerning the statutory aggravating circumstances but may decline to instruct the jury on any aggravating circumstance not supported by evidence.  The court may provide the jury with a list of the mitigating and aggravating circumstances upon which the jury was instructed.

Added by Acts 1976, No. 694, §1; Acts 1985, No. 231, §1; Acts 1988, No. 779, §1, eff. July 18, 1988.

Art. 905.4. Aggravating circumstances

            A. The following shall be considered aggravating circumstances:

            (1) The offender was engaged in the perpetration or attempted perpetration of aggravated or first degree rape, forcible or second degree rape, aggravated kidnapping, second degree kidnapping, aggravated burglary, aggravated arson, aggravated escape, assault by drive-by shooting, armed robbery, first degree robbery, second degree robbery, simple robbery, cruelty to juveniles, second degree cruelty to juveniles, or terrorism.

            (2) The victim was a fireman or peace officer engaged in his lawful duties.

            (3) The offender has been previously convicted of an unrelated murder, aggravated or first degree rape, aggravated burglary, aggravated arson, aggravated escape, armed robbery, or aggravated kidnapping.

            (4) The offender knowingly created a risk of death or great bodily harm to more than one person.

            (5) The offender offered or has been offered or has given or received anything of value for the commission of the offense.

            (6) The offender at the time of the commission of the offense was imprisoned after sentence for the commission of an unrelated forcible felony.

            (7) The offense was committed in an especially heinous, atrocious or cruel manner.

            (8) The victim was a witness in a prosecution against the defendant, gave material assistance to the state in any investigation or prosecution of the defendant, or was an eye witness to a crime alleged to have been committed by the defendant or possessed other material evidence against the defendant.

            (9) The victim was a correctional officer or any employee of the Department of Public Safety and Corrections who, in the normal course of his employment was required to come in close contact with persons incarcerated in a state prison facility, and the victim was engaged in his lawful duties at the time of the offense.

            (10) The victim was under the age of twelve years or sixty-five years of age or older.

            (11) The offender was engaged in the distribution, exchange, sale, or purchase, or any attempt thereof, of a controlled dangerous substance listed in Schedule I, II, III, IV, or V of the Uniform Controlled Dangerous Substances Law.

            (12) The offender was engaged in the activities prohibited by R.S. 14:107.1(C)(1).

            (13) The offender has knowingly killed two or more persons in a series of separate incidents.

            B. For the purposes of Paragraph (A)(2) herein, the term "peace officer" is defined to include any constable, marshal, deputy marshal, sheriff, deputy sheriff, local or state policeman, commissioned wildlife enforcement agent, federal law enforcement officer, jail or prison guard, parole officer, probation officer, judge, attorney general, assistant attorney general, attorney general's investigator, district attorney, assistant district attorney, or district attorney's investigator.

            Added by Acts 1976, No. 694, §1. Amended by Acts 1979, No. 74, §2, eff. June 29, 1979; Acts 1985, No. 515, §2; Acts 1985, No. 748, §1; Acts 1987, No. 655, §1; Acts 1987, No. 862, §1; Acts 1989, No. 371, §1; Acts 1995, No. 1179, §1; Acts 1995, No. 1274, §1; Acts 2006, No. 86, §1; Acts 2009, No. 79, §1, eff. June 18, 2009; Acts 2015, No. 184, §6.

Art. 905.5. Mitigating circumstances

The following shall be considered mitigating circumstances:

(a)  The offender has no significant prior history of criminal activity;

(b)  The offense was committed while the offender was under the influence of extreme mental or emotional disturbance;

(c)  The offense was committed while the offender was under the influence or under the domination of another person;

(d)  The offense was committed under circumstances which the offender reasonably believed to provide a moral justification or extenuation for his conduct;

(e)  At the time of the offense the capacity of the offender to appreciate the criminality of his conduct or to conform his conduct to the requirements of law was impaired as a result of mental disease or defect or intoxication;

(f)  The youth of the offender at the time of the offense;

(g)  The offender was a principal whose participation was relatively minor;

(h)  Any other relevant mitigating circumstance.

Added by Acts 1976, No. 694, §1.

Art. 905.5.1. Intellectual Disability

            A. Notwithstanding any other provisions of law to the contrary, no person with an intellectual disability shall be subjected to a sentence of death.

            B. Any capital defendant who claims to have an intellectual disability shall file written notice thereof within the time period for filing of pretrial motions as provided by Article 521 of this Code.

            C.(1) Any defendant in a capital case making a claim of intellectual disability shall prove the allegation by a preponderance of the evidence. The jury shall try the issue of intellectual disability of a capital defendant during the capital sentencing hearing unless the state and the defendant agree that the issue is to be tried by the judge. If the state and the defendant agree, the issue of intellectual disability of a capital defendant may be tried prior to trial by the judge alone.

            (2) Any pretrial determination by the judge that a defendant does not have an intellectual disability shall not preclude the defendant from raising the issue at the penalty phase, nor shall it preclude any instruction to the jury pursuant to this Article.

            D. Once the issue of intellectual disability is raised by the defendant, and upon written motion of the district attorney, the defendant shall provide the state, within time limits set by the court, any and all medical, correctional, educational, and military records, raw data, tests, test scores, notes, behavioral observations, reports, evaluations, and any other information of any kind reviewed by any defense expert in forming the basis of his opinion that the defendant has an intellectual disability.

            E. By filing a notice relative to a claim of intellectual disability under this Article, the defendant waives all claims of confidentiality and privilege to, and is deemed to have consented to the release of, any and all medical, correctional, educational, and military records, raw data, tests, test scores, notes, behavioral observations, reports, evaluations, expert opinions, and any other such information of any kind or other records relevant or necessary to an examination or determination under this Article.

            F. When a defendant makes a claim of intellectual disability under this Article, the state shall have the right to an independent psychological and psychiatric examination of the defendant. A psychologist or medical psychologist conducting such examination must be licensed by the Louisiana State Board of Examiners of Psychologists or the Louisiana State Board of Medical Examiners, whichever is applicable. If the state exercises this right, and upon written motion of the defendant, the state shall provide the defendant, within time limits set by the court, any and all medical, correctional, educational, and military records, and all raw data, tests, test scores, notes, behavioral observations, reports, evaluations, and any other information of any kind reviewed by any state expert in forming the basis of his opinion that the defendant does not have an intellectual disability. If the state fails to comply with any such order, the court may impose sanctions as provided by Article 729.5 of this Code.

            G. If the defendant making a claim of intellectual disability fails to comply with any order issued pursuant to Paragraph D of this Article, or refuses to submit to or fully cooperate in any examination by experts for the state pursuant to either Paragraph D or F of this Article, upon motion by the district attorney, the court shall neither conduct a pretrial hearing concerning the issue of intellectual disability nor instruct the jury of the prohibition of executing defendants with intellectual disabilities.

            H.(1) "Intellectual disability", formerly referred to as "mental retardation", is a disability characterized by all of the following deficits, the onset of which must occur during the developmental period:

            (a) Deficits in intellectual functions such as reasoning, problem solving, planning, abstract thinking, judgment, academic learning, and learning from experience, confirmed by both clinical assessment and individualized, standardized intelligence testing.

            (b) Deficits in adaptive functioning that result in failure to meet developmental and sociocultural standards for personal independence and social responsibility; and that, without ongoing support, limit functioning in one or more activities of daily life including, without limitation, communication, social participation, and independent living, across multiple environments such as home, school, work, and community.

            (2) A diagnosis of one or more of the following conditions does not necessarily constitute an intellectual disability:

            (a) Autism.

            (b) Behavioral disorders.

            (c) Cerebral palsy and other motor deficits.

            (d) Difficulty in adjusting to school.

            (e) Emotional disturbance.

            (f) Emotional stress in home or school.

            (g) Environmental, cultural, or economic disadvantage.

            (h) Epilepsy and other seizure disorders.

            (i) Lack of educational opportunities.

            (j) Learning disabilities.

            (k) Mental illness.

            (l) Neurological disorders.

            (m) Organic brain damage occurring after age eighteen.

            (n) Other disabling conditions.

            (o) Personality disorders.

            (p) Sensory impairments.

            (q) Speech and language disorders.

            (r) A temporary crisis situation.

            (s) Traumatic brain damage occurring after age eighteen.

            Acts 2003, No. 698, §1; Acts 2009, No. 251, §1, eff. Jan. 1, 2010; Acts 2014, No. 811, §31, eff. June 23, 2014.

Art. 905.6. Jury;  unanimous determination

A sentence of death shall be imposed only upon a unanimous determination of the jury.  If the jury unanimously finds the sentence of death inappropriate, it shall render a determination of a sentence of life imprisonment without benefit of probation, parole or suspension of sentence.

Added by Acts 1976, No. 694, §1; Acts 1988, No. 779, §1, eff. July 18, 1988.

Art. 905.7. Form of determination

The form of jury determination shall be as follows:

"Having found the below listed statutory aggravating circumstance or circumstances and, after consideration of the mitigating circumstances offered, the jury unanimously determines that the defendant should be sentenced to death.

Aggravating circumstance or circumstances found:

s/_____________________________________________

Foreman"

or

"The jury unanimously determines that the defendant should be sentenced to life imprisonment without benefit of probation, parole or suspension of sentence.

s/_____________________________________________

Foreman"

Added by Acts 1976, No. 694, §1; Acts 1988, No. 779, §1, eff. July 18, 1988.

Art. 905.8. Imposition of sentence

The court shall sentence the defendant in accordance with the determination of the jury.  If the jury is unable to unanimously agree on a determination, the court shall impose a sentence of life imprisonment without benefit of probation, parole or suspension of sentence.

Added by Acts 1976, No. 694, §1; Acts 1988, No. 779, §1, eff. July 18, 1988.

Art. 905.9. Review on appeal

The Supreme Court of Louisiana shall review every sentence of death to determine if it is excessive.  The court by rules shall establish such procedures as are necessary to satisfy constitutional criteria for review.

Added by Acts 1976, No. 694, §1.

Title XXXI. Appeal

Chapter 1. General Dispositions

Art. 911. Right to appeal from judgment

Appeal is the exercise of the right of the state or the defendant to have a judgment or ruling reviewed by the proper appellate court.  An appeal bond is not required.

Art. 912. Judgments or rulings appealable

A.  Only a final judgment or ruling is appealable.

B.  The state cannot appeal from a verdict of acquittal.  Adverse judgments or rulings from which the state may appeal include, but are not limited to, judgments or rulings on:

(1)  A motion to quash an indictment or any count thereof;

(2)  A plea of time limitation;

(3)  A plea of double jeopardy;

(4)  A motion in arrest of judgment;

(5)  A motion to change the venue;

(6)  A motion to recuse; and

(7)  Repealed by Acts 1968, No. 146, §1.

C.  The judgments or rulings from which the defendant may appeal include, but are not limited to:

(1)  A judgment which imposes sentence;

(2)  A ruling upon a motion by the state declaring the present insanity of the defendant; and

(3)  Repealed by Acts 1968, No. 146, §1.

Amended by Acts 1968, No. 146, §1.

Art. 912.1. Right of appeal and application for review;  defendant

A.(1)  The defendant may appeal to the supreme court from a judgment in a capital case in which a sentence of death actually has been imposed.

(2)  Except as provided in Code of Criminal Procedure Article 905.9, such defendant may waive his right of appeal.  The defendant shall be informed, both in writing and orally, of this right to waive appeal upon appointment of appellate counsel.

B.(1)  The defendant may appeal to the court of appeal from a judgment in a criminal case triable by jury, except as provided in Paragraph A or Subparagraph (2) of this Paragraph.

(2)  An appeal from a judgment in a criminal case triable by jury from a city court located in the Nineteenth Judicial District, except as provided in Paragraph A of this Article, shall be taken to the Nineteenth Judicial District in the parish of East Baton Rouge.

C.(1)  In all other cases not otherwise provided by law, the defendant has the right of judicial review by application to the court of appeal for a writ of review.  This application shall be accompanied by a complete record of all evidence upon which the judgment is based unless the defendant intelligently waives the right to cause all or any portion of the record to accompany the application.

(2)  An application for review by the defendant shall not suspend the execution of sentence, unless the defendant is admitted to postconviction bail.

Added by Acts 1974, Ex.Sess., No. 28, §1, eff. Jan. 1, 1975.  Amended by Acts 1980, No. 516, §1, eff. July 1, 1982; Acts 1986, No. 443, §1; Acts 2001, No. 1134, §2; Acts 2010, No. 674, §1, eff. Oct. 1, 2010.

Art. 913. Effect of appeal

A.  An appeal by the state suspends the ruling or judgment from which the appeal is taken, except when the ruling or judgment requires the release of the defendant.

B.  An appeal by the defendant shall not suspend the execution of sentence, unless the defendant is admitted to postconviction bail.

Amended by Acts 1982, No. 736, §1.

Chapter 2. Procedure in Lower Court for Appeal

Art. 914.1. Designation of record;  payment of costs;  sanction

A.  The party making the motion for appeal shall, at the time the motion is made, request the transcript of that portion of the proceedings necessary, in light of the assignment of errors to be urged.  Not later than five days after the motion, the opposing party may designate in writing the transcript of that portion or portions of the proceedings necessary to oppose the appeal.

B.  A transcript of any portion of the proceedings which does not relate to anticipated assignment of errors shall not be furnished to a party for purposes of appeal and shall not result in delay of preparation of the appeal record.

C.(1)  An attorney who requests a transcript in accordance with this Article must certify there are good grounds for such request in light of the assignment of errors to be urged.

(2)  Except in indigent cases, the costs for preparing the transcript must be paid to the court reporter or the appropriate agency and the costs as required for filing the appeal must be paid in the appellate court, both within twenty days of the mailing of notice, including the payment of any additional costs owed upon notice.

(3)  Where applicable, if the appellant or appellant's counsel fails to pay the estimated cost for preparing the record including the transcript within the time specified, the trial judge, on his own motion or upon motion by the clerk or by any party, and after a hearing, may do one of the following:

(a)  Extend the time within which the costs may be paid not to exceed thirty days with or without penalty to the appellant or his attorney.

(b)  Impose a fine not to exceed five hundred dollars upon the appellant or his attorney, or both.

(c)  Dismiss the appeal.

D.  The trial court or the appellate court may designate additional portions of the transcript of the proceedings which it feels are necessary for full and fair review of the assignment of errors.

Added by Acts 1982, No. 143, §1.  Acts 1984, No. 937, §2.

{{NOTE:  SEE ALSO ACTS 1984, NO. 937, §3 AND ACTS 1984, NO. 838, §1.}}

Art. 915. Action on a motion for appeal;  return;  notice

A.  When a motion for an appeal is made in conformity with Articles 912, 914, and 914.1 the trial court shall grant or deny the motion within seventy-two hours, exclusive of legal holidays, after the motion is made.  The return date shall be seventy-five days from the date the motion for appeal is granted, unless the trial judge fixes a lesser period.  When a motion for an appeal has been timely made, the appeal shall not be affected by any fault or omission on the part of the trial court.

B.  The minute clerk for each section of the trial court shall forward a copy of the notice of appeal to the clerk of the trial court and to the court reporters responsible for preparing the necessary transcripts, within twenty-four hours, exclusive of legal holidays, of the date the appeal is ordered.  The clerk of the trial court shall forward a copy of the notice of appeal to the sheriff having custody of the defendant, to the appropriate appellate court, and to each party, within seven days of the date the appeal is ordered.  The party moving for the appeal must forward notice that a motion for appeal has been made to the appropriate appellate court within seven days of the date the motion is made.  Failure of the minute clerk, the clerk of court, or the party moving for the appeal, to provide notice shall not affect the validity of the appeal.

Amended by Act 1974, No. 207, §1; Acts 1982, No. 143, §1; Acts 1988, No. 525, §1; Acts 1999, No. 706, §1.

Art. 915.1. Appeals;  extension of return date;  notice

A.  The trial court may grant one extension of the return date of not more than thirty days.  An extension may not be granted after the return date has passed.  The extension may be granted only upon proof presented by the moving party that additional time is necessary due to extenuating circumstances beyond the control of the moving party and that, without the extension, an unusual and undue hardship would be created.  A copy of the extension shall be filed with the appellate court and the clerk of the trial court.

B.  Subsequent extensions may be granted by the appellate court for sufficient cause or at the request of the court reporter as provided in Article 919.  When a subsequent extension is granted by the appellate court, notice thereof shall be given by mail by the clerk of the trial court to all parties.  Failure of the clerk of the trial court to mail such notice shall not affect the validity of the appeal nor will any error or defect which is not imputable to the appellant affect the validity of the appeal.

Acts 1988, No. 525, §1.

Art. 916. Divesting of jurisdiction of trial court

The jurisdiction of the trial court is divested and that of the appellate court attaches upon the entering of the order of appeal.  Thereafter, the trial court has no jurisdiction to take any action except as otherwise provided by law and to:

(1)  Extend the return day of the appeal, the time for filing assignments of error, or the time for filing per curiam comments in accordance with Articles 844 and 919.

(2)  Correct an error or deficiency in the record.

(3)  Correct an illegal sentence or take other appropriate action pursuant to a properly made or filed motion to reconsider sentence.

(4)  Take all action concerning bail permitted by Title VIII.

(5)  Furnish per curiam comments.

(6)  Render an interlocutory order or a definitive judgment concerning a ministerial matter not in controversy on appeal.

(7)  Impose the penalty provided by Article 844.

(8)  Sentence the defendant pursuant to a conviction under the Habitual Offender Law as set forth in R.S. 15:529.1.

Amended by Acts 1968, No. 147, §1; Acts 1974, No. 207, §1; Acts 1984, No. 527, §1; Acts 1986, No. 851, §1; Acts 1991, No. 38, §2; Acts 1997, No. 642, §1.

{{NOTE:  SEE ACTS 1991, NO. 38, §3, FOR SPECIAL EFFECTIVE DATE FOR PARAGRAPH (3).}}

Art. 917. Record on appeal;  preparation

The clerk of the trial court shall prepare the record on appeal and lodge it with the appellate court on or before the return date or any extension thereof.  The clerk of the trial court shall prepare the record in accordance with the rules of the appellate court.  Failure of the Clerk to prepare and lodge the record on appeal either correctly or timely shall not prejudice the appeal, unless such defect or delay is imputable to the appellant.

Amended by Acts 1984, No. 528, §1; Acts 1988, No. 525, §1.

Art. 918. Record on appeal;  certified and dated

A.  All records and supplemental records prepared for filing in any appellate court shall be certified and dated by the clerk upon completion.  The certification shall include the date any transcript was received for inclusion in the record.

B.  All transcripts or parts thereof completed for inclusion in the record shall be dated and certified by the court reporter who prepares them.  The date of certification by the court reporter shall be the date on which the transcript was completed and furnished to the clerk for inclusion in the record.

Acts 1988, No. 525, §1.

Art. 919. Record on appeal;  preparation and delivery of transcripts

A.  Each court reporter assigned to prepare any transcript necessary to complete the appeal record shall deliver the transcript to the clerk of the trial court who has the duty of preparing the record for appeal five days before the return date.

B.  Whenever the court reporter cannot deliver the transcript to the clerk of the trial court five days before the return date, the reporter shall file a request for an extension of the return date with the trial court or the appellate court as provided by Article 915.1.  Whenever a court reporter has not delivered a transcript five days before the return date, the clerk of the trial court shall file a certificate with the court of appeal, not later than seven days after the return date, advising that the record is ready for lodging except for the lack of delivery of the transcript.  In such certificate, the clerk shall include the name and address of each reporter who has failed to deliver a transcript and whether any of the court reporters have requested an extension of the return date.

C.  Upon the request of the appellate court when the transcript has not been delivered to the clerk of court, but the record is otherwise ready for lodging, the record shall be lodged.  The clerk of the trial court shall include with the record a certificate stating the name and address of each court reporter who is required to prepare and deliver a transcript.  Thereafter, the appellate court may issue appropriate orders to any named reporter to expedite the preparation and delivery of any necessary transcripts.

Amended by Acts 1980, No. 537, §1.  Acts 1984, No. 524, §1; Acts 1987, No. 726, §1; Acts 1988, No. 525, §1; Acts 1999, No. 706, §1.

Art. 919.1. Record on appeal;  contempt

A.  Failure of any person to comply with Articles 914 through 919 may subject such person to contempt of court.  Such contempt charges may be initiated by the trial court or by the appellate court on the court's own motion or by motion of any party.

B.  In any court where the duty of preparing the appellate record is delegated to, or assumed by, an official other than the clerk of court, by court rule or by custom, all of the provisions applicable to the clerk of court regarding the preparation of such a record are equally applicable to such court official.

Acts 1988, No. 525, §1.

Chapter 3. Procedure in Appellate Court

Art. 920. Scope of appellate review

The following matters and no others shall be considered on appeal:

(1)  An error designated in the assignment of errors; and

(2)  An error that is discoverable by a mere inspection of the pleadings and proceedings and without inspection of the evidence.

Amended by Acts 1974, No. 207, §1.

Art. 921. Matters not grounds for reversal

A judgment or ruling shall not be reversed by an appellate court because of any error, defect, irregularity, or variance which does not affect substantial rights of the accused.

Amended by Acts 1979, No. 86, §1.

Art. 921.1. Notice of decision in criminal appeals

A. In addition to the requirements regarding transmission of notice of judgment and copies of decisions under the Uniform Rules of Louisiana Courts of Appeal, when a decision in an appellate court in a criminal appeal is rendered, the clerk of court shall transmit a notice or copy of the decision to the clerk of court from which the appeal was taken and to the Department of Public Safety and Corrections.

B. When a decision of the supreme court is rendered in a criminal appeal, the clerk of court shall transmit a notice or copy of the decision to the clerk of court from which the appeal was taken and to the Department of Public Safety and Corrections.

Acts 2014, No. 600, §1.

Art. 922. Finality of judgment on appeal

A.  Within fourteen days of rendition of the judgment of the supreme court or any appellate court, in term time or out, a party may apply to the appropriate court for a rehearing.  The court may act upon the application at any time.

B.  A judgment rendered by the supreme court or other appellate court becomes final when the delay for applying for a rehearing has expired and no application therefor has been made.

C.  If an application for a rehearing has been made timely, a judgment of the appellate court becomes final when the application is denied.

D.  If an application for a writ of review is timely filed with the supreme court, the judgment of the appellate court from which the writ of review is sought becomes final when the supreme court denies the writ.

Acts 1983, No. 451, §1; Acts 1993, No. 976, §1.

Art. 923. Duty of clerk as to final decisions in appellate court

When a decision of an appellate court becomes final, the clerk of court shall transmit a certified copy of the decree to the court from which the appeal was taken.  When the judgment is received by the lower court, it shall be filed and executed.