State v. GregrichState v. Gregrich
- Reporters:
- ,
- Before:
- Thibodeaux, Peters, Gremillion
The state initially charged the defendant with vehicular homicide, a violation of
On the operating a motor vehicle while intoxicated, Ms. Gregrich, it is the sentence of this Court you pay a fine of $1,000.00 and you be confined in the Sabine Parish Jail for a period of six months. On the Negligent Homicide charge it is the sentence of this Court you be confined to the Louisiana Department of Corrections for a period of three (3) years. Those two sentences are to run concurrent. You are to participate in the substance abuse evaluations and follow all the recommendations that follow from that. You are given credit for all time served.
The defendant appeals only the negligent homicide sentence, contending that it is excessive.
ERROR PATENT
In accordance with
In the sentencing proceedings, the trial court ordered the defendant to participate in substance abuse evaluations and follow the recommendations resulting from the evaluations. It is not clear whether this portion of the sentence was imposed in conjunction with the negligent homicide conviction or the DWI conviction, but, in either case, it is an illegal sentence.
Under
An illegal sentence may be corrected at any time by an appellate court on review.
[W]hen correction of an illegal sentence does not involve the exercise of sentencing discretion, there is no reason why the appellate court should not simply amend the sentence.... However, if correction involves the exercise of sentencing discretion ... the case must be remanded for the trial court to perform that function.
In State v. Prince, 97-0727 (La.9/26/07); 701 So.2d 965, the supreme court simply amended the sentence imposed by the trial court to delete the requirement of restitution where restitution was not authorized by statute. Also, in State v. Lee, 94-0814 (La.6/17/94); 641 So.2d 206, the supreme court simply amended a sentence to delete the requirement of restitution where restitution was not authorized by statute. In State v. Yancy, 93-2798 (La.5/31/96); 673 So.2d 1018, the supreme court amended the sentence to delete only that portion denying the defendant eligibility for parole where at the time of the crime there was no requirement of parole ineligibility. In State v. Yarbrough, 596 So.2d 311 (La.App. 3 Cir.), writ denied, 599 So.2d 317 (La. 1992), the third circuit amended the portion of the defendant‘s sentence that precluded parole, probation, or suspension of sentence where the preclusion of those benefits was not authorized by statute.
We note that in State v. Narcisse, 97-3161 (La.6/26/98); 714 So.2d 698, the supreme court vacated a sentence and remanded to the trial court for resentencing where the trial court erroneously required restitution and denied the defendant eligibility for good-time credits. In Narcisse, the supreme court did not state that it was required to remand the sentence because the case involved the exercise of sentencing discretion. Rather, it appears that the supreme court may have been exercising its own discretion in remanding the case, because
We find the instant case is analogous to Prince, Lee, Yancy, and Yarbrough such that the correction does not involve the exercise of sentencing discretion. Therefore, we amend the sentence imposed by the trial court to delete that portion requiring participation in substance abuse evaluations and the following of the recommendations resulting from them.
EXCESSIVENESS OF SENTENCE
In her sole assignment of error, the defendant asserts that her three-year sentence is excessive. A conviction for negligent homicide exposes a defendant to a maximum possible sentence of five years at hard labor and a $5,000.00 fine. See
Before sentencing the defendant in this case, the trial court ordered that a presentence investigation report be prepared and submitted. This report revealed that the defendant had been charged in 1986 with distribution of marijuana and that she pled guilty the same year to the reduced charge of possession of marijuana. It also revealed that, in the same year, she was charged with and pled guilty to DWI, first offense. In both cases, the defendant was
In sentencing the defendant, the trial court stated that it considered the defendant‘s criminal record, reviewed the presentence investigation report and supplemental report, considered input from the victim‘s father, read correspondence from a social services counselor, reviewed the sentencing guidelines contained in
In addition to the trial court‘s findings already mentioned, it noted that the sentencing range for vehicular homicide, the original charge, varies from a minimum of two years with or without hard labor to a maximum of fifteen. Thus, the trial court noted that the defendant benefited from the reduced charge because it reduced her incarceration exposure significantly. As a mitigating factor, the trial court noted that the defendant received severe injuries in the accident. Additionally, the trial court allowed the defendant to respond to the suggestion that she had not properly complied with the substance abuse requirements but found her excuse to be inadequate.
A trial court is given wide discretion in imposing a sentence, and a sentence imposed within statutory limits should not be set aside as excessive in the absence of manifest abuse of discretion. State v. Howard, 414 So.2d 1210 (La.1982). Under the facts of this case, we find no abuse of the trial court‘s discretion in sentencing the defendant to three years at hard labor for negligent homicide. Thus, we reject this assignment of error.
DISPOSITION
For the forgoing reasons, we amend the sentence to delete that portion of the sentence requiring the defendant to participate in substance abuse evaluations and to follow the recommendations resulting from them. We affirm the defendant‘s sentence as amended.
AFFIRMED AS AMENDED.