State v. Procell , 626 So. 2d 954 ( 1993 )

626 So. 2d 954 (1993)

STATE of Louisiana
v.
Maurice PROCELL.

Cr93-141.

Court of Appeal of Louisiana, Third Circuit.

November 17, 1993.

Don M. Burkett, for State.

W. Charles Brown, for Maurice Procell.

Before GUIDRY, STOKER and DECUIR, JJ.

GUIDRY, Judge.

Defendant, Maurice Procell, appeals his conviction on the offense of sexual battery, a violation of La. R.S. 14:43.1. He originally assigned six errors to the action of the trial court. Subsequently, defendant's counsel abandoned the original assignments and requested that this court review the record for errors patent. Accompanying this pleading was a motion to withdraw as counsel and an appellate brief explaining that, after a thorough review of the record, defense counsel determined that the appeal was wholly frivolous in that no non-frivolous issues existed to present on appeal. Defense counsel sufficiently complied with the procedures of Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967), as interpreted by State v. Benjamin, 573 So. 2d 528 (La.App. 4th Cir.1990). Counsel's detailed review of the procedural history and facts of the case indicate a thorough review of the record.

This court forwarded a copy of the brief filed by counsel to the defendant and informed him that he had the right to file a brief on his own behalf. Defendant has not filed a brief.

A review of the record reveals two errors patent regarding defendant's sentence. Neither of these errors requires reversal of defendant's conviction and sentence. The trial court failed to give defendant credit for time served, La.C.Cr.P. art. 880, and failed to advise him of the La.C.Cr.P. art. 930.8 three year time limit for filing for post-conviction relief.

The defendant must be given credit for time served. La.C.Cr.P. art. 880; State v. Carr, 618 So. 2d 1098 (La.App. 1st Cir. 1993). Accordingly, defendant's sentence is amended to award credit for time actually spent in custody, if any, prior to the execution of his sentence. La.C.Cr.P. 882. Resentencing is not required. State v. Ladner, 619 So. 2d 1144 (La.App. 1st Cir.1993). We remand with instructions that the trial court order the amendment of the commitment and the minute entry of the sentencing to reflect that the defendant be given credit for time served. Additionally, the trial court is directed to inform the defendant of the Article 930.8 provisions by sending appropriate written notice to the defendant within ten days of the rendition of this opinion and to file written proof of defendant's receipt of such notice in the record of the proceedings. See State v. Fontenot, 616 So. 2d 1353 (La.App. 3rd Cir.1993).

We hereby grant defense counsel's motion to withdraw and affirm defendant's conviction and the sentence imposed as amended. This case is remanded to the trial court for further action consistent with this opinion.

AFFIRMED AS AMENDED; REMANDED.