State v. WingateState v. Wingate
Relator, Edwin Wingate, was charged by bill of information with one count of possession of undersized catfish, in violation of
1. The trial court erred in denying the motion to quash.
2. The trial court erred in finding relator guilty of failure to maintain records.
3. The trial court erred in finding relator guilty of possession of undersized catfish.
4. The trial court erred in denying the motion to reconsider sentence.
5. The trial court erred in imposing an excessive sentence.
FACTS:
On December 4, 1994, relator‘s tractor-trailer was stopped by Wildlife and Fisheries agents on I-10 in St. Tammany Parish just before the Mississippi state line. A search of the truck, which contained a large shipment of frozen catfish, revealed that a very high proportion of the shipment consisted of undersized channel catfish. Relator, a truck driver for Bеnnett Seafood, which is located in Bainbridge, Georgia, was arrested and cited for the above violations.
At the trial, Wildlife and Fisheries Agent Edward L. Adams testified that on December 2, 1994, he received an anonymous call that a truck from Bennett Seafood was in Des Allemands, Louisiana, picking up undersized catfish. After conducting surveillance on the truck for approximately two days and following it to various locations, the Wildlife and Fisheries Agents stopped it on I-10 in St. Tammany Parish and discovered a high proportion of undersized channel catfish. Agent Adams testified there was a total of 32,083 “collarboned” (head-removed) catfish in the shipment. One load of catfish came from B & C Seafoods, Inc., in Vacherie, Louisiana. This shipment contained 6,613 channel catfish and 357 blue catfish. Of the channel catfish, 4,213 were legal and 2,400 were undersized. Agent Adams stated approximately 36.3 percent of this shipment of channel catfish from B & C Seafoods, Inc., was undersized.
Agent Adams also testified regarding the shipment of catfish from Cajun Catfish in Des Allemands, Louisiana. This shipment consisted of 25,480 channel catfish and 10 blue catfish. Of the channel catfish, 6,510 were legal and 18,970 were undersized. Agent Adams testified that 74.45 percent of these channel catfish were undersized. Although relator produced some pаpers in his truck which included a wholesale/retail dealers license, receipts from Cajun Catfish and B & C Seafoods, Inc., and check stubs, he did not produce all of the records required by
Wildlife and Fisheries biologist Howard Rogillio was accepted by the trial court as an expert in the identification of fish. Rogillio explained the method used to distinguish a channel catfish from a blue catfish and the
Relator stated that on Dеcember 4, 1994, he was employed by Bennett Seafood. He furnished a tractor-truck, and Bennett Seafood provided the trailer. He explained Bennett Seafood placed orders for the catfish, and he only picked them up, wrote a check for the purchase, and transported the fish back to Bennett Seafood. He testified he did not open the boxes, and he did not know what size fish were in the boxes. When asked if he knew he was supposed to keep license numbers from the persons from whom he purchased fish, relator responded that he was a truck driver, he worked out of Georgia, and he was not familiar with Louisiana rules and regulations.
ASSIGNMENT OF ERROR NUMBER ONE:
In this assignment of error, relator contends the trial court erred in denying the motion to quash. Relator‘s motion to quash alleged
Relator argues this statute is unconstitutionally vague and overbroad because a person who initially possesses a legal shipment containing ten percent undersized fish (See
Relator also contends that this statute proscribing the possession of undersized catfish is an unconstitutional denial of equal protection of the laws because seafood dealers who possess undersized crabs are treated differently than those who possess undersized catfish, and because the channel сatfish is the only freshwater or saltwater finfish with a measurement for the collarbone-off size limit.
Obviously, differences among the various species of fish and wildlife mandate different rules and regulations in order to protect, conserve, and efficiently manage each species. The state‘s regulatory laws limit and control the exploitation of wildlife by requiring licenses to take game and fish, providing for the fixing of seasons and limits, regulating methods of taking, providing for the licensing of commercial fishing vessels, etc. See State v. McHugh, 92-1852 (La. 1/6/94), 630 So.2d 1259, 1265. Contrary to relator‘s argument, the fact that channel catfish can be measured either by total length (minimum length eleven inches with the mouth closed) or by a length with the collarbone off (minimum length nine inches), does not deny to anyone engaged in the commercial catfish business the equal protection of the laws. Obviously, the fact that a channel catfish can be measured not only by its total length, but also after having been cleaned (collarboned, i.e., head removed), only facilitates the commercial seafood business by providing a way to check for minimum length requirements after these fish have been processed.
Finally, we are unpersuaded by relator‘s argument regarding the alleged unequal treatment of wholеsale/retail crab dealers who possess undersized crabs and wholesale/retail catfish dealers who possess undersized catfish. Relator notes that, pursuant to
ASSIGNMENT OF ERROR NUMBER TWO:
In this assignment of error, relator contends that the trial court erred in finding him guilty of failure to maintain records. Specifically, relator asserts he was only a truck driver employee of Bennett Seafood, the owner of the wholesale/retail dealer‘s license, and that the record-keeping requirements of
In order to transport fish, relator was required to possess at least one of the following: (1) a commercial fisherman‘s license; (2) a wholesale/retail dealer‘s license; or (3) a transport license. See
ASSIGNMENT OF ERROR NUMBER THREE:
In this assignment of error, relator contends that the trial court erred in finding him guilty of possession of undersized catfish. Specifically, he urges there was no showing of knowledge or scienter. Relator states he “did not know what size catfish he picked up and was transporting and had no way of knowing except to rip open each sealed box” and defrost the fish therein. He requests this Court to “read into the law scienter or knowledge.” We decline to do so.
The following are the legal size limits on commercial fish. No рerson shall take or possess these fish under or over the prescribed sizes for commercial purposes.
Criminal conduct consists of:
(1) An act or a failure to act that produces criminal consequences, and which is combined with criminal intent; or
(2) A mere act or failure to act that produces criminal consequences, where there is no requirement of criminal intent; or
(3) Criminal negligence that produces criminal сonsequences.
If a statute has made it a crime to do a particular act, no further proof of intent is required than that accused voluntarily did the act; and any evidence that he did not know such act to be forbidden by law is inadmissible.
It is well established that some crimes have no intent element. See State v. Humphrey, 412 So.2d 507, 512 n. 3 (La.1981). We note the Legislature could have placed an intent requirement into
ASSIGNMENT OF ERROR NUMBER FOUR:
In this assignment of error, relator maintains the trial court erred in denying the motion to reconsider sentence. Relator‘s motion to reconsider sentence contained three grounds. First, the trial court failed to give him credit for time served. Second, the total of the fines imposed ($700) and the forfeiture of all fish seized (even legal fish) exceeded the $1,000 limit for non-jury trials provided in
Initially, we note relator was entitled to credit for time served and we order the trial court, upon resentencing, to give him such credit. We consider relator‘s argument regarding the excessiveness of his sixty-day jail sentence in our treatment of assignment of error number five.
Concerning relator‘s argument that the total of the fines imposed and the forfeiture of all the fish seized exceeded the $1,000 limit for non-jury trials, we note he does not specifically argue reversible error for the denial of the right to a jury trial or for the lack of a jury trial waiver. Instead, he raised this issue as a part of his motion to reconsider sentence. In any event, for the following reasons, we reject relator‘s argument that the forfeiture of fish should be
Forfeiture of the fish seized in this case is not a sentencing function of the trial court. The trial court may impose a fine, imprisonment, or both, for a first offense Class 3 violation. See
Additionally, we reject relator‘s implied assertion that the fish in this case have been forfeited. Although the minutes incorrectly indicate the trial court ordered the fish to be destroyed on motion of the assistant district attorney, in fact, an examination of the transcript reveals that the trial court withheld a pronоuncement on the forfeiture pending the outcome of the instant writ application.
ASSIGNMENT OF ERROR NUMBER FIVE:
In this assignment of error, relator contends the trial court erred in imposing an excessive sentence. Specifically, he asserts that 60 days in jail is excessive for “a minor record keeping violation.” However, as noted above in footnote 2, the 60-day jail sentence was imposed (along with the $400 fine) for the pоssession of undersized catfish conviction. This offense is a Class 3 violation. See
Although a sentence falls within statutory limits, it mаy be excessive. State v. Sepulvado, 367 So.2d 762, 767 (La.1979). However, the trial court has great discretion in imposing a sentence within the statutory limits; and such a sentence will not be set aside as excessive in the absence of manifest abuse of discretion. State v. Latiolais, 563 So.2d 469, 473 (La.App. 1st Cir.1990).
The factors guiding the decision of the trial court are necessary for an appellate court to adequately review a sentence for excessiveness and, therefore, should be in the record. Otherwise, a sentence may appear to be arbitrary or excessive and not individualized to the particular defendant. State v. Green, 558 So.2d 1263, 1268 (La.App. 1st Cir.), writ denied, 564 So.2d 317 (La.1990). When the reasons for an apparently severe sentence in relation to the particular defendant and the actual offense committed do not appear in the record, a sentence may be vacated and remanded for resentencing. State v. Green, 558 So.2d at 1268.
In the instant case, while the amount of undersized catfish possessed by relator was substantial, the trial court did not state that it had considered his criminal record, personal history, employment, education, age, etc. In our view, the trial court did not state sufficient reasons to explain or justify the imposition of a 60-day sentence, in addition to the $400 fine, for this particular offender and this offense. Nevertheless, we do not specifically find this sentence to be excessive. There may be good reasons for imposing this sentence in this case. If Relator has a criminal record the offense might warrant a jail term. By remanding the case for resentencing, we are simply giving the trial court an opportunity to either reduce the sentence or state sufficient reasons to justify the imposition of this sentence. Accordingly, the instant sentence is vacated and the case is remanded to the trial court for resentencing. If relator is a first offender, the trial court should give strong consideration to a suspended sentence and probation, including in such probation a special condition of no more than 30 days in the parish jail. The trial court also shall give relator credit for
Concerning the sentence imposed for Count 2 (the failure to maintain records conviction), we find that a fine of $300 is not excessive under the circumstances presented herein. As no jail term was imposed in connection with this conviction, credit for time served is not an issue in this sentence.
CONVICTIONS AFFIRMED. SENTENCE (FINE) FOR FAILURE TO MAINTAIN RECORDS CONVICTION AFFIRMED. ENTIRE SENTENCE FOR POSSESSION OF UNDERSIZED CATFISH VACATED AND REMANDED FOR RESENTENCING IN ACCORDANCE WITH THE VIEWS EXPRESSED HEREIN.