STATE of Louisiana v. Fred PIAZZA
No. 91-KK-2256
Supreme Court of Louisiana
March 2, 1992
Rehearing Granted in Part April 30, 1992
596 So. 2d 817
LEMMON, Justice.
Ronald S. Macaluso, Russell W. Rudolph, Seal, Macaluso & Ross, Hammond, for respondent.
LEMMON, Justice.
The State has appealed directly to this court under
Defendant was indicted for violating
Defendant filed a motion to quash the indictment on various grounds. One ground asserted was that the statute was unconstitutional because the penalty provision was ambiguous.
The district judge declared
The State thereafter applied for certiorari, but this court recognized the State‘s right to an appeal and docketed the case as an appeal. 588 So.2d 92.
Prior to 1986,
During the same session the Legislature enacted La.Acts 1986, No. 1040, without mentioning Act 625. Act 1040 reenacted Section 202 in its entirety. The penalty paragraphs contained the same provisions as Act 625 when the amount misapplied is less than $1,000. However, Act 1040 provided for imprisonment of not more than two years and a fine of not more than $2,000 when the amount misapplied is between $1,000 and $4,999, and further provided for imprisonment of not more than five years and a fine of not more than $5,000 when the amount misapplied is $5,000 or more. Act 1040 did not provide any minimum finе or imprisonment for misapplication of amounts of $1,000 or more.2
Act 625 was passed finally by the Legislature on June 17, 1986, was signed by the Governor on July 6, and was published in the official journal on August 8. Act 1040 was passed finally by the Legislature on June 30, 1986, was signed by the Governor on July 17, and was published in the official journal on August 19. Both acts became effective on August 30, 1986, and purportedly remained in effect at the time of the charged misconduct.3 Thus, defendant was charged with a crime defined identically by two separate acts passed during the same legislative session, but the two acts contained two very different penalties.
Legislative intent is the fundamental question in all cases of statutory interpretation, and rules of statutory construction are designed to ascertain and enforce the intent of the statute. The rules of statutory construction applicable in this casе are those pertinent to conflicting legislative acts and to repeal by implication.
The legislative branch is presumed to intend to achieve a consistent body of law. 1A N. Singer, Sutherland Statutory Construction § 23.09 (Sands 4th ed. 1986). When a legislature enacts a statute without mention of existing statutes on the same subject mаtter, the later act may, by necessary implication, effect the repeal of the preexisting law. However, there is a presumption against implied repeal, based on the theory that the legislature envisions the whole body of law when it enacts new legislation. Id. at § 23.10. Thus, a сourt should give harmonious effect to all acts on a subject when reasonably possible. However, when two acts are clearly irreconcilable, are clearly repugnant as to essential matters relating to the acts, and are so inconsistent that the two cannot have concurrent operation, then the presumption against implied repeal falls, and the later statute governs. Id.
Accordingly, when inconsistent amendments to the same statute have been adopted at the same legislative session, the court should attempt to construe the statute so as to give effect to both amendments consistent with legislative intent. Only when it is impossible to give effect to both amendments should the court allow the time of passage of the acts to be the controlling factor. Allowing the later act to control effectivеly recognizes a repeal by implication of the earlier act, and such recognition of a repeal by implication should occur only when the acts passed in the same session are so repugnant that they cannot stand together.
The present case, therefore, does not turn on whether either concurrently existing version of
The principle of lenity developed on the basis that a person should not be сriminally punished unless the law has provided a fair warning of what conduct will be considered criminal. 3 N. Singer, at § 59.04. The rule does not merely reflect a convenient maxim of statutory construction, but is based on the fundamental principle of due process that no person should be forced to speculate whether his conduct is prohibited. Dunn v. United States, 442 U.S. 100, 99 S.Ct. 2190, 60 L.Ed.2d 743 (1979). Questions concerning the ambit of a criminal statute should be resolved in favor of lenity. Huddleston v. United States, 415 U.S. 814, 94 S.Ct. 1262, 39 L.Ed.2d 782 (1974). The rule of lenity applies not only to interpretations of the substantive ambit of criminal laws, but also to the penalties imposed by those laws. Bifulco v. United States, 447 U.S. 381, 100 S.Ct. 2247, 65 L.Ed.2d 205 (1989); State v. Bosworth, 373 So.2d 152 (La.1979).
The present case does not involve a conflict in the portion of the criminal statute which defines the conduct that will be considered criminal, but rather involves a conflict in the penalty portion of the statute. Nevertheless, a necessary concomitant of the due process requirement of certainty in the definition of criminal conduct is the requirement that the penalty portion of a statute be definite. State v. Shondel, 22 Utah 2d 343, 453 P.2d 146 (1969); compare State v. LeCompte, 406 So.2d 1300 (La.1981) (on original hearing). When the statutory penalty for a crime is indefinite, the accused will be forced to speculate on the range of sentence to which he will be exposed upon conviction and will be unable to intelligently evaluate developments in the plea bargaining process. To resolve the conflict when a criminal statute provides inconsistent penalties, or when two or more interpretations are possible, the rule of lenity directs the court to impose the least severe penalty. 3 N. Singer, supra.
In the present case the 1986 Louisiana Legislature clearly intended to create a felony and to provide a graduated penalty range when the amount of misaрplied payments exceeds $1,000. While the Legislature in both Act 625 and Act 1040 maintained the misdemeanor status and penalty for misapplication of amounts of less than $1,000, both amendments added greater penalties for larger amounts. The amendments are inconsistent as to the apрlicable penalty range, varying according to the amount of misapplication found by the trier of fact, and one cannot definitely determine which amendment generally provides a lesser penalty.4 Nevertheless, the amendments can be reconciled by giving some effect to both so as to carry out the intent of the Legislature, while also applying the principle of lenity.
We therefore proceed to construe the penalty provisions of Acts 625 and 1040 together, considering both legislative intent and lenity. Inasmuch as Act 1040 does not provide а minimum term of imprisonment when the misapplied amount is $1,000 or more, the principle of lenity, applied to the construction of the two amendments, mandates that there be no minimum term of imprisonment for violation of Section 202. Because the maximum term of imprisonment is five years under both аcts, the maximum term of imprisonment for misapplication of $5,000 or more is five years. And because the term of imprisonment varies in the two acts for amounts between $1,000 and $5,000, the sentencing judge has the discretion to impose a sentence between zero and five years, as long as the sentence does not exceed the maximum term of imprisonment to which the accused
As to the fine, Act 1040 does not provide a minimum fine, but does provide a maximum fine of $5,000, while Act 625 provides a minimum fine of $100 and a maximum fine of $500 for each $1,000 misapplied, but no maximum total fine. Under the rule of lenity, we apply the zero minimum and $5,000 maximum in construing the two acts. The sentencing judge has the discretion to impose a fine between zero and $5,000, as long as the fine does not exceed the maximum amount to which the accused would be exposed under the graduated terms of either aсt.
Defendant contends that applying the minimum penalty from one amendment and the maximum from the other is judicial rewriting of the legislative enactment. Defendant argues that the vagueness created by the inconsistent amendments requires the court to refuse to apply either. The result wоuld be dismissal of the charges against him because of the absence of a valid statute under which he could be prosecuted.
As noted above, in the event of enactment of conflicting amendments to a statute during the same legislative session, the court should either reconсile the statutes consistent with legislative intent or apply the latest amendment. In no case should both legislative enactments be rejected unless both are independently unconstitutional on other grounds. Our decision in this case to give effect to both amendments consistent with legislativе intent does not constitute judicial rewriting of the statute, but is an accepted method of statutory construction reflective of the intent of the lawmaker.
Accordingly, the judgment of the district court declaring
PER CURIAM.
Defendant‘s application for rehearing is granted for the sole purpose of amending our original opinion to correct an error in referring to the maximum penalties for certain amounts of misapplied payments.
Act 625 provided a maximum penаlty of imprisonment of not more than six months for each $1,000 in misapplied funds, up to a maximum of five years. Act 1040, enacted during the same session, provided a maximum penalty of imprisonment of not more than two years for misapplied amounts of $1,000 to $4,999 and of not more than five years for misapplied amounts of $5,000 or more.
In reconciling the two provisions on original hearing, this court, applying the principle of lenity, held that for amounts between $1,000 and $5,000 “the sentencing judge has the discretion to impose a sentence between zero and five years, as long as the sentence does not exceed the maximum term of imprisonment to which the accused would be exposed under the graduated terms of either act.” However, the principle of lenity also dictates that for amounts over $5,000 the maximum penalty under Act 625 applies, mandating a maximum term of imprisonment of no more than six months per $1,000 of misapplied funds, up to a maximum term of five years. In effect the sentencing judge must consider the least severe maximum term of imprisonment under either act for the particular amount of payments found to be misapplied.1
As to the maximum fine, the sentencing judge should likewise consider the least severe maximum fine under either act for the particular amount of payments to be misapplied.