State v. Byars

559 So. 2d 534, 1990 La. App. LEXIS 732, 1990 WL 40576
CourtLouisiana Court of Appeal
DecidedApril 4, 1990
DocketNo. 21387-KA
StatusPublished
Cited by1 cases

This text of 559 So. 2d 534 (State v. Byars) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Byars, 559 So. 2d 534, 1990 La. App. LEXIS 732, 1990 WL 40576 (La. Ct. App. 1990).

Opinion

SEXTON, Judge.

From his conviction of felony theft of property valued over $500, defendant Noel E. Byars appeals his conviction and sentence.

The charges arose after defendant, who was then serving as mayor of the city of Minden, deposited a check in the amount of $2166.60 which had been issued to him by the Louisiana Department of Environmental Quality (D.E.Q.) into his personal checking account. The check was issued by the D.E.Q. to reimburse Mayor Byars and several other individuals for expenses which they incurred in a trip taken by them and sponsored by the D.E.Q. Mayor Byars failed to disburse the monies to the other travelers.

Defendant was subsequently sentenced to five years at hard labor. The hard labor prison sentence was suspended and the defendant was placed on supervised probation for a period of five years, together with the following special conditions of probation: a fine of $2000, all costs of court, 5000 hours of community service, four hours per month of mental health counseling for five years, payment of the probation supervision fee, and abstinence from the use of alcohol or controlled dangerous substances.

Defendant now brings this appeal raising five assignments of error:

1. The trial court erred in denying the defendant’s motion for a new trial;
2. The trial court further erred in denying defendant’s motion for a change of venue;
3. The trial court erred in denying defendant’s motion for post verdict judgment of acquittal;
4. The trial court erred in imposing an excessive sentence; and
5. The trial court erred in allowing the travel expense vouchers of Mr. Schuetts to be introduced into evidence.

We now affirm the defendant’s conviction and sentence choosing only to deal [535]*535with the contention of excessive sentence per Assignment of Error No. 4 in the published portion of this opinion. The remainder of the opinion (the detailed facts and the disposition of the other assignments of error) is hereby designated as an unpublished appendix.

Assignment of Error No. 4 Excessiveness of Sentence

For the crime of theft in excess of $500, the defendant was exposed to a maximum of ten years at hard labor and a fine of $3000. The trial court imposed a five-year hard labor sentence, which was suspended, and the defendant was placed on supervised probation for a period of five years. The following special conditions of probation were imposed: 1) a $2000 fine; 2) payment of court costs in the amount of $77.00; 3) payment of $1339.60 for costs of the jury trial; 4) 5000 hours of community service to be served as a teacher at Wade Correctional Institute at the rate of 1000 work hours per year plus 250 travel hours per year over a four-year period, travel expense to be at defendant’s cost; and 5) four hours per month mental health counseling for five years at defendant’s cost.

Compliance with LSA-C.Cr.P. Art. 894.1 is not contested, rather, the defendant contends that the sentence is constitutionally excessive. Defendant does not specifically complain of the five-year term of the labor sentence, but restricts his complaint to the requirement of probation relating to community service. Defendant contends that the large number of hours of community service work required is inconsistent with the other terms of probation, specifically, that defendant maintain a job and that he pay the $2000 fine and costs of trial. He argues that the teaching hours required of him will produce such hardship on him that not only will it be almost impossible for him to find an employer that will tolerate these extra demands, but that it will be physically difficult for a man of his age to withstand the burden of a regular job plus the community service work.

Defendant further argues that the imposition of 5000 hours of community service is not permitted by LSA-C.Cr.P. Art. 895 because that article requires that the conditions of probation imposed by the sentencing judge be “reasonably related to his rehabilitation.” Defendant argues that community service is not rehabilitative, but is rather, when given involuntarily under sentence, punitive.

A sentence is constitutionally excessive in violation of Louisiana Constitution of 1974 Art. 1, § 20 if the sentence is grossly out of proportion to the severity of the offense or nothing more than a needless and purposeless imposition of pain and suffering. State v. Bonanno, 384 So.2d 355 (La.1980); State v. Cunningham, 431 So.2d 854 (La.App. 2d Cir.1983), writ denied, 438 So.2d 1112 (La.1983).

It is well settled that the sentencing judge is given wide discretion in imposing a sentence within the statutory limits, and such a sentence should not be set aside as excessive in the absence of a manifest abuse of discretion by the sentencing judge. State v. Square, 433 So.2d 104 (La.1983); State v. Brooks, 431 So.2d 865 (La.App. 2d Cir.1983); State v. Hammonds, 434 So.2d 452 (La.App. 2d Cir.1983), writ denied, 439 So.2d 1074 (La.1983).

It is clear from viewing the sentencing transcript that the trial judge labored to devise a sentence which he considered most beneficial to defendant’s rehabilitation and also adequate to repay defendant’s indebtedness to society. The trial judge was taken with the view that the defendant would make an excellent teacher and serve the state well while teaching inmates at the nearby Wade Correctional Center, noting that the defendant’s service might by “guesstimate” save the state something in the neighborhood of $25,000 or $30,000 in teaching expenses.

We disagree with the defendant that community service is punitive per se. Community service is a well recognized and acceptable method of rehabilitation. We are aware, however, that the defendant is not currently employed, having been removed from office as a result of a recall [536]*536election. It will be necessary for him to obtain employment in order to pay his fine and court costs and to support his family while on probation. The amount of community service ordered — 5000 hours at 1000 per year — amounts to just over 83 hours per month and just over 19'A hours per week. It is thus approximately 3.85 hours a day when worked on a daily basis. In contrast, it is obvious that a person who works a normal 40-hour week job will work approximately 173 hours over a period of a month, or approximately 2078 hours per year. Thus, the trial court order would at first glance seem to require that the defendant maintain a full-time job to support his family and then in addition fulfill a part-time (one-half time) job to complete his community service involving almost 20 hours a week.

Our initial reaction was that such community service, while difficult, is not unduly onerous where as here, it is designed to pertain to the defendant’s rehabilitation and is assessed as an alternative to incarceration. Many citizens accept even more difficult burdens to provide for their families. Obviously, however, working “a job and a half” regularly for five years can become an onerous situation if illness or protracted family difficulties intervene. Of course, those circumstances would address themselves to the sound discretion of the trial judge at that time should the defendant fall short of the mark.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

State v. Byars
565 So. 2d 424 (Supreme Court of Louisiana, 1990)

Cite This Page — Counsel Stack

Bluebook (online)
559 So. 2d 534, 1990 La. App. LEXIS 732, 1990 WL 40576, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-byars-lactapp-1990.