State v. BoothState v. Booth
The State charged the defendant, Walter Booth, Jr., a convicted armed robber, with carrying a concealed firearm, a violation of
The defendant appeals. He relies upon one assignment of error for reversal оf his conviction and sentence. As defense counsel did not brief or argue two assignments of error, we consider them abandoned. State v. Phillips, La., 337 So.2d 1157 (1976); State v. Blanton, La., 325 So.2d 586 (1976); State v. Carlisle, La., 315 So.2d 675 (1975).
We adduce the following context facts:
Thе police stopped the defendant for driving at night without headlights. As the defendant exited his car, he drew a pistol from his waistband and aimed it at one of the officers. After a struggle, the police seized the pistol and arrested him.
In a motion to quash and a motion in arrеst of judgment, the defendant alleges that the penalty provision under which the court sentenced and fined him,
“Whoever is found guilty of violating the provisions of this Section shall be imprisoned at hard labor for not less than three nor more than ten years without benefit of parole, probation, or suspension of sentence, and be fined not less than one thousand dollars nor more than five thousand dollars.” [Emphasis supplied.]
The Senate amended the bill to end the sentence after the phrase “ten years” and insertеd an additional clause at the beginning of the second sentence. The final version, incorporating these amendments, reads:
“Whoever is found guilty of violating the provisions of this Section shall be imprisoned at hard labor for not less than three nor more than ten years. If such conviction is for the crime of carrying a concealed weapon, such sentence shall be without the benefit of probation, parole, or suspension of sentence and be fined not less than one thousand dollars nor mоre than five thousand dollars.” [Emphasis supplied.]
A statute is unconstitutionally vague if it fails to give a person of ordinary intelligence fair notice that his conduct is criminal. Rose v. Locke, 423 U.S. 48, 96 S.Ct. 243, 46 L.Ed.2d 185 (1975); Smith v. Goguen, 415 U.S. 566, 96 S.Ct. 1242, 39 L.Ed.2d 605 (1974); Papachristou v. City of Jacksonville, 405 U.S. 156, 92 S.Ct. 839, 31 L.Ed.2d 110 (1972); State v. Johns, La., 339 So.2d 801 (1976); State v. Felton, La., 339 So.2d 797 (1976); State v. Comeaux, La., 319 So.2d 897 (1975).
By its very terms, the void-forvagueness doctrine focuses upon the certainty of the conduct proscribed, not the penalties for such conduct. As the two alleged ambiguities are in the penalty clause, this constitutional doctrine is inapplicablе.
The defendant‘s argument that the statute is invalid because it does not give him adequate notice if he is to receive a fine in additiоn to a jail term is devoid of merit.
A defendant is entitled to know in advance only the range of the applicable sentence. Many statutes place the decision of whether to impose a fine in addition, or alternative, to a sentence in the discretiоn of the judge. See
For the reasons set forth below, we find that
The defendant contends that
LSA-R.S. 14:3 provides:“Thе articles of this Code cannot be extended by analogy so as to create crimes not provided for herein; however, in order to promote justice and to effect the objects of the law, all of its provisions shall be given a genuine construction, according to the fair import of their words, taken in their usual sense, in connection with the context, and with reference to the purpose of the provision.”
See State v. Newton, La., 328 So.2d 110 (1976); State v. Truby, 211 La. 178, 29 So.2d 758 (1947). See also 73 Am.Jur.2d Statutes, § 296, p. 454.
A statute should be interpreted so as to avoid absurd consequences. Hayes v. Orleans Parish School Board, 256 La. 677, 237 So.2d 681 (1970); State v. Seals, 255 La. 1005, 233 So.2d 914 (1970); Smith v. Flournoy, 238 La. 432, 115 So.2d 809 (1959).
The defendant further argues that
A court mаy ascertain the meaning of a word or phrase in a statute from the meaning of other words or phrases with which it is associated. State v. Hertzog, 241 La. 783, 131 So.2d 788 (1961); State v. Arkansas Louisiana Gas Co., 227 La. 179, 78 So.2d 825 (1955); Board of Trustees of Fin. Auth. v. All Taxpayers, La.App., 336 So.2d 306 (1976); B.W.S. Corp. v. Evangeline Parish Police Jury, La.App., 293 So.2d 233 (1974). In сonstruing statutes, courts must interpret an apparent ambiguity or inconsistency so as to give effect to all of the provisions of thаt statute. We assume that the Legislature intended every word in a statute to add meaning. State v. Cazes, 262 La. 202, 263 So.2d 8 (1972); State v. Dozier, 258 La. 323, 246 So.2d 187 (1971); State v. Sage, 162 La. 630, 110 So. 884 (1926).
The verb in the first clause of the disputed sentencе is “shall be.” The Legislature omitted the “shall” for the second verb and used only “be.” In our opinion, the verb phrase “be fined” refers directly to the proceeding verb phrase “shall be.” With reference to “shall,” the imposition of the fine is mandatory.
If we were to construe
Further, we conclude that the fine is an additional, not alternative, penalty to the jail sentence. The word “and” joins the provisions of the statute relating to the jail sentence and the fine. Thе word “and” indicates that the proceeding and subsequent phrases are in the conjunctive.
In conclusion, we interpret
Whoever is found guilty of violating the provisiоns of this Section shall be imprisoned at hard labor for not less than three nor more than ten years. If such conviction is for the crime of carrying a concealed weapon, such sentence shall be without the benefit of probation, parole, or suspension of sentence, and such defendant shall be fined not less than one thousand dollars nor more than five thousand dollars.
We hold that
For the reasons assigned, the conviction and sentence are affirmed.
DIXON, J., concurs.