State v. Smith 482 So. 2d 68

*69REDMANN, Chief Judge.

The only question on this appeal is whether a prior conviction was properly used to enhance sentence of the present conviction. We hold it was not.

The state has the burden of proving that a defendant should be sentenced as a multiple offender, just as it has the burden of proving that a defendant should be sentenced as a single offender. The state did not carry its burden and the defendant did not plead guilty to being a multiple offender.

The defendant admitted only that he was the same person as the previously-sentenced Barry J. Smith, and he objected to the application of the multiple offender statute. No evidence was introduced to show that his 1977 plea of guilty was entered after proper Boykinization. The minutes of the earlier plea recite only:

“The court advised the defendant that by entering a plea of guilty he, the defendant, was waiving certain of his constitutional rights, which the Court explained to the defendant in detail. The defendant executed a written waiver of these rights in open court, which waiver was filed into the record.”

The waiver form recited only:

“I understand that I have a right to trial and if convicted a right to appeal and by entering a plea of guilty in this case I am waiving my rights to trial and appeal.”

Unlike the defendant in Scott v. Maggio, 695 F.2d 916 (5 Cir.1983), defendant here did not plead guilty to being a multiple offender. He did nothing save admit that he was the same person, and in fact his lawyer “objected” to the multiple offender sentencing but was not given the opportunity to explain the basis of his objection.1

*70State v. Talbert, 416 So.2d 68, 70 (La. 1982), cited by the state, is not controlling because there, “[w]hile the content of the printed [guilty plea] form is arguably deficient, defendant made no objection to its sufficiency at the multiple offender hearing and therefore cannot, for the first time on appeal, contend that the state failed to carry its burden of proving the validity of the plea.’.' Similarly, in State v. Jackson, 389 So.2d 69, 70 (La.1980), also cited by the state, “no objection was made to consideration of the prior pleas.... ” In our case, objection was made to the application of the multiple offender statute but it was dismissed summarily.

Nor does State v. Bolton, 379 So.2d 722, 723 (La.1979), nullify a defendant’s objection unless it is expressly directed to his earlier plea’s “voluntariness or to its being a knowing plea_” If a defendant objects to the application of the multiple offender statute at all, he must at least be afforded the opportunity to state his grounds before being dismissed on the theory that his grounds are inadequate.

The sentence is set aside and the matter remanded for resentencing at a hearing at which defendant may specify the grounds of his objection and the State may present evidence that the prior plea was preceded by proper Boykinization.

REMANDED.

ARMSTRONG, J., dissents with opinion.

ARMSTRONG, Judge,

dissenting.

I respectfully dissent. The trial court followed the clear mandate of LSA-R.S. 15:529.1 (D), which provides in pertinent part:

... If the judge finds that [the defendant] has been convicted of a prior felony or felonies, or if he acknowledges or confesses in open court, after being duly cautioned as to his rights, that he has been so convicted, the court shall sentence him to the punishment proscribed in this Section ... (emphasis added).

Here the defendant acknowledged that he had been previously convicted as alleged, and he offered no objection to the State’s use of the predicate offense.

It is well settled that a defendant who fails to object at a multiple offender hearing to the validity of the guilty plea which serves as a predicate offense can not, for the first time on appeal, contend that the state failed to carry its burden of proving the validity of the former plea. State v. Talbert, 416 So.2d 68 (La.1982); State v. Nelson, 379 So.2d 1072 (La.1980); see State ex rel. Martin v. State, 462 So.2d 637 (La.1985); State v. Lefevre, 419 So.2d 862 (La.1982).

In the instant case the defendant merely objected, after sentence, to the application of the habitual offender statute. He did not object to the validity of the prior plea or assert any defect in the Boykinization connected with the plea. Defendant’s objection could have been interpreted as an assertion that. 1.) the habitual offender statute was unconstitutional as written or applied, 2.) the predicate offense was not a felony under Louisiana law or 3.) the five year cleansing period of LSA-R.S. 15:529.-1(C) had elapsed. Such a generalized and untimely objection was not sufficient to place the State on notice as to its burden of proof in the habitual offender proceeding.

Accordingly, defendant’s remedy is an application for post-conviction relief. See Martin, supra; Talbert, supra.