State v. SmithState v. Smith
The appellant, Irma Mae Smith, was convicted on one count of theft of property having a value in excess of five hundred dollars and one count of theft of property having a value in excess of one hundred dollars but less than five hundred dollars, both in violation of
Defendant, the unmarried mother of six children born out of wedlock, was convicted of wrongfully receiving $4,682.00 in welfare benefits and $161.00 in food stamps over a two year period. The state‘s evidence showed that defendant made wilful misrepresentations to her social workers concerning her eligibility for aid to families with dependent children (AFDC) and food stamps. On three occasions, in applying for AFDC benefits, she reported that the natural father of her children, Frank Warren, Jr., took no interest in the children and did not contribute in any manner to their support. Eligibility for AFDC benefits is dependent upon the deprivation of parental support through the continuous absence or incapacity of at least one parent. The continuous absence must be of a nature as to “either interrupt or terminate the parent‘s functioning as a provider of maintenance, physical care or guidance for the child“. Each time the defendant applied for AFDC benefits, she was informed of her duty to give accurate information and to immediately report changes in her personal or financial condition.
Evidence produced at trial showed that Frank Warren, Jr. did in fact take an active role in the raising of the children. He was present in the defendant‘s home on most weekends, and occasionally during the week. He provided money for rent, utilities, and clothing for the children. It was clearly shown that there was no “parental deprivation” present so as to make the defendant eligible for AFDC benefits, and that the defendant was aware of this when she made these misrepresentations to the Office of Family Security.
Eligibility for food stamps is based for the most part on household income. In applying for food stamps, the defendant failed to report that she periodically received money from her boyfriend as well as from Frank Warren, Jr. She also failed to report that a member of her household was earning a paycheck. She also reported that she owned no automobiles, although she in fact owned a 1972 Cadillac. The defendant would have been entitled to food stamps had she been truthful in her application, but the amount would have been less. Testimony showed that the amount she would have been entitled to had she been truthful was $161.00 less than the amount she actually received.
The defendant contends that the sentences imposed by the trial court are excessive and violative of
In imposing sentence upon the defendant, the trial judge took note of her extensive criminal record and the fact that her offenses were an affront not only to those persons truly in need but also to the taxpayers of the state and the nation who finance the programs defrauded by the defendant. He also observed the defendant‘s apparent lack of remorse for her crimes,
Although the reasons stated by the trial judge may provide factual support for a finding of one or more of the aggravating circumstances, the trial judge failed to state what those aggravating circumstances were, as required by the statute. In addition, the trial judge‘s reasons for imposing sentence give no indication that he considered any circumstances which would mitigate against the imposition of a prison sentence. The record must reflect that mitigating as well as aggravating circumstances have been considered, even if the mitigating circumstances are minimal. State v. Duncan, supra; State v. Ray, supra.
For the above and foregoing reasons, the sentence imposed by the trial court is vacated, and the case is remanded for resentencing in accordance with the views expressed herein.
REMANDED FOR RESENTENCING.