467 So. 2d 152 | La. Ct. App. | 1985
Dissenting Opinion
dissenting.
I respectfully dissent. I agree that the sentencing judge is subject to criticism in the respects outlined in the majority opinion. However, the only aspect of the sentence about which defendant complains is the nine months jail service imposed as a condition of probation. In State v. Capdeville, 438 So.2d 1310 (La.App. 3d Cir.1983) we said:
“The trial judge did not give an articulated factual basis for his sentencing choice which is the goal of Article 894.1. State v. Lanclos, 419 So.2d 475 (La. 1982). However, this does not automatically render a sentence invalid. State v. Wimberly, 414 So.2d 666 (La.1982). Where a sentence imposed is not apparently severe and is in the lower range of the sentencing scale, a remand is not necessary for compliance with Article 894.1 governing a judge’s reasons for*154 sentence. State v. Jones, 412 So.2d 1051 (La.1982).”
Although one considers all the things urged in defendant's favor, including a fine family background, the fact that he is essential to the family business, is a first offender, is youthful, and is making efforts to rehabilitate himself, a probationary sentence of nine months in jail is not, to my mind, an apparently severe punishment for possession of cocaine.
Lead Opinion
The defendant, Nathan L. Dondis, was charged with distribution of cocaine in violation of LSA-R.S. 40:967(A), which was subsequently reduced to a charge of possession of cocaine in violation of LSA-R.S. 40:967(C). The defendant plead guilty to the reduced charge and was sentenced by the trial court to the maximum sentence of five years, which was suspended, subject to a five-year probationary period, with the further conditions that the defendant serve nine months in the parish jail and pay the maximum fine of $5,000 or serve an additional year in the parish jail in default thereof. The defendant has appealed, based upon the excessiveness of this sentence. We affirm the defendant’s conviction, but vacate his sentence and remand for resentencing.
The defendant, a twenty-four-year-old employed in his family’s nursery business, was arrested after he sold cocaine to an undercover officer in Lake Charles. The amount of cocaine found in the defendant’s possession was about 5 grams.
The defendant has no prior history of criminal activity and, since his arrest, has become involved in drug rehabilitation programs. The trial court did not order a pre-sentence investigation and evidently did not take into account the many letters presented to the court on the defendant’s behalf. The trial court, while recognizing the factors militating in favor of a suspended sentence for this young first-time offender, completely failed to articulate, under the guidelines of LSA-C.Cr.P. Art. 894.1, any basis for the sentence of imprisonment which he imposed. Great discretion is given to the trial court in sentencing, but, though each and every factor in Art. 894.1 need not be articulated, the record must support the sentence imposed. State v. Molinet, 393 So.2d 721 (La.1981); State v. Rachal, 428 So.2d 805 (La.1983).
The trial court’s references to the prevalence of drug activity in the Lake Charles area and the number of drug cases on his docket, taken alone, are not very persuasive considerations upon which a sentence may be based. The record indicates, from those comments, a lack of individualization or particularization of the sentence imposed on this defendant.
Because we have so little information before us upon which to base a review of the excessiveness of the defendant’s sentence, the defendant’s sentence is vacated, and the case is remanded to the trial court for resentencing in compliance with LSA-C.Cr.P. Art. 894.1.
CONVICTION AFFIRMED, SENTENCE VACATED, and CASE REMANDED.
STOKER, J., dissents and assigns written reasons.
