State v. WrightState v. Wright
Bruce E. Wright wаs charged by information with theft of livestock in violation of
Defendant contends the trial judge erred in failing to comply with the sentencing guidelines set forth in
A. When a defendant has been convicted of a felony or misdemeanor, the court should impose a sentence of imprisonment if:
(1) Thеre is an undue risk that during the period of a suspended sentence or probation the defendant will commit another crime;
(2) The defendant is in need оf correctional treatment or a custodial environment that can be provided most effectively by his commitment to an institution; or
(3) A lesser sentеnce will deprecate the seriousness of the defendant‘s crime.
B. The following grounds, while not controlling the discretion of the court, shall be accorded weight in its determination of suspension of sentence or probation:
(1) The defendant‘s criminal conduct neither caused nor threatened serious harm;
(2) The defendant did not contemplate that his criminal conduct would cause or threaten serious harm;
(3) The defendant acted under strong provocation;
(4) There was substantial grounds tending tо excuse or justify the defendant‘s criminal conduct, though failing to establish a defense;
(5) The victim of the defendant‘s criminal conduct induced or facilitated its commission;
(6) The defendant has compensated or will compensate the victim of his criminal conduct for the damage or injury that he sustainеd;
(7) The defendant has no history of prior delinquency or criminal activity or has led a law-abiding life for a substantial period of time before the cоmmission of the instant crime;
(8) The defendant‘s criminal conduct was the result of circumstances unlikely to recur;
(9) The character and attitudes of the dеfendant indicate that he is unlikely to commit another crime;
(10) The defendant is particularly likely to respond affirmatively to probationary treatment; and
(11) The imprisonment of the defendant would entail excessive hardship to himself or his dependents.
C. The court shall state for the record the considerations taken into account and the factual basis therefor in imposing sentence.
Defendant was sentenced along with a number of оther persons who had entered guilty pleas to charges relating to the theft of livestock. Addressing the entire group, the trial judge noted that their aсtivity constituted a continuing criminal conspiracy with an adverse economic impact on the victims and that the legislature “has pointed out in thе past that they are interested in the discouragement of the theft of livestock.” In sentencing defendant to serve
The considerations tаken into account by the trial judge should be based upon factual determinations. Among the numerous matters to be reviewed are: the defendant‘s рersonal history (e. g., age, marital status, dependents, family stability, employment, mental, emotional, and physical health); the defendant‘s prior criminal record; the seriousness of the crime; the circumstances of the offense; the likelihood that defendant will commit another crime; and his pоtential for rehabilitation through correctional services other than confinement.
In the instant case, the trial judge stated only one factor considered by him in imposing sentence. The trial judge‘s disbelief of defendant‘s explanation of his involvement in the crime supports the judge‘s acceptance of defendant‘s plea of guilty, but it should not be used as a factor in imposing sentence. The record reflects that defendant had no prior criminal record and had made restitution to the victims.
A matter of particular concern to us is the possible failure of the trial judge to consider the recent amendment to the penalty provision of
As a general rule, the law in effect at the time of the commission of the offense is determinative of the penalty which the convicted accused must suffer. State v. Gros, 205 La. 935, 18 So.2d 507 (1944), cert. denied, 326 U.S. 766, 66 S.Ct. 170, 90 L.Ed. 462 (1945). The instant offense was committed on July 28, 1979, prior to the effective date of the amendment. Hence, the рre-amendment penalty provision was applicable to defendant. Defendant entered his guilty plea on august 27, 1979, and was sentenced on October 9, 1979 (subsequent to the effective date of the amendment).
Under these circumstances, while the lesser penalty afforded by the amendment was not applicable to defendant, it certainly should have been considered by the trial judge in determining the sentence to be imposed.
Since we are unable to review the excessiveness of defendant‘s sentence because it was imрosed without proper compliance with
For the reasons assigned, the conviction is affirmed; the sentence is vacated and set aside and the case is remanded to the district court for resentencing of defendant according to law and consistent with the views herein expressed.