STATE of Louisiana

v.

Wesley DICK.

State of Louisiana

v.

Melvin Smith.

Nos. 2006-KP-2223, 2006-KK-2226.

Jan. 26, 2007.

Kimball, J. . . . .   Opinion at La Supreme Court Web: http://www.lasc.org/opinions/2007/06KP62223KP2226.pdf

"These consolidated criminal cases concern sentences imposed under prior law and whether La.Rev.Stat. 15:308, pertaining to ameliorating sentences as enacted by 2006 La. Acts No. 45, provides authority for the sentencing courts to modify the defendants' sentences. At the time of the defendants' offenses, convictions and sentencing, La.Rev.Stat. 40:966B(1) provided a penalty of mandatory life imprisonment. In 2001, the legislature amended La.Rev.Stat. 40:966B(1) to reduce the penalty for distribution or possession with intent to distribute heroin. For the following reasons we find that although in La.Rev.Stat. 15:308, the legislature mandates retroactive application of the more lenient penalty provisions to those persons who committed crimes, who were convicted or who were sentenced according to La.Rev.Stat. 40:966B, the legislature did not provide that these offenders may seek resentencing in the courts, the judicial branch of government, because they are constitutionally required to seek relief in the executive branch. Resentencing these offenders in order to retroactively apply the more lenient penalty provisions to offenders whose convictions and sentences are final is, in effect, a commutation of a valid and final sentence, which falls within the executive branch of government, not the judicial branch. Therefore, La.Rev.Stat. 15:308C correctly provides the offenders' exclusive remedy is before the Louisiana Risk Review Panel, which falls within the executive branch of government."