State v. Mims

550 So. 2d 760, 1989 WL 100440
CourtLouisiana Court of Appeal
DecidedAugust 23, 1989
Docket20,726-KA
StatusPublished
Cited by34 cases

This text of 550 So. 2d 760 (State v. Mims) 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. Mims, 550 So. 2d 760, 1989 WL 100440 (La. Ct. App. 1989).

Opinion

550 So.2d 760 (1989)

STATE of Louisiana, Appellee,
v.
Michael J. MIMS, Appellant.

No. 20,726-KA.

Court of Appeal of Louisiana, Second Circuit.

August 23, 1989.

*761 Bobby L. Culpepper, Jonesboro, for appellant.

William J. Guste, Jr., Atty. Gen., Baton Rouge, John C. Blake, Dist. Atty., Chris L. Bowman, Asst. Dist. Atty., Jonesboro, for appellee.

Before HALL, MARVIN and LINDSAY, JJ.

LINDSAY, Judge.

The defendant, Michael J. Mims, was convicted of distribution of marijuana and possession of marijuana with intent to distribute, violations of LSA-R.S. 40:966. He was sentenced to serve nine years at hard labor and to pay a fine of $15,000.00 on each count. In addition, in default of payment of the fines, he was ordered to serve an additional year on each count. The court ordered the sentences to be served consecutively. The defendant appeals his sentences, claiming they are unconstitutionally excessive and that the sentencing court failed to adequately comply with sentencing instructions previously given by this court. For the following reasons, we vacate the sentences imposed by the trial court and, once again, remand the case for resentencing.

FACTS

The facts forming the basis for these convictions are fully set forth in State v. Mims, 524 So.2d 526 (La.App. 2d Cir.1988). Briefly stated, on November 23, 1984, some time after 9 p.m., a police informant and two Jackson Parish Sheriff's Deputies went *762 to a store operated by the defendant. The informant entered the store and purchased marijuana from the defendant. The informant paid the defendant with a marked twenty dollar bill. After the transaction, the informant told the deputies that the defendant stated he had more marijuana in a safe place in his mobile home.

The deputies prepared a search warrant for the defendant's store and mobile home. The warrant was signed by a district court judge and was executed in the early morning of November 24, 1984. The search revealed the marked twenty dollar bill which the informant used to purchase the marijuana. Approximately 1.7 pounds of marijuana were found in a stereo speaker in the defendant's mobile home.

The defendant was charged by bill of information with one count of distribution of marijuana and one count of possession of marijuana with intent to distribute. The defendant was tried by a jury and found guilty as charged on both counts.

The trial court originally sentenced the defendant to the maximum sentence under each count, ten years at hard labor and a fine of $15,000.00 and ordered that the sentences be served consecutively. On each count, the defendant was also ordered to serve an additional prison term of one year at hard labor in default of payment of the fines. The defendant appealed his convictions and sentences. Included in his assignments of error were objections to the exclusion of black prospective jurors by the State through the use of peremptory challenges. We remanded the case to the trial court for a hearing on this issue in accordance with Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). State v. Mims, 505 So.2d 747 (La.App. 2d Cir. 1987).

A hearing was held and the trial court ruled that the jury had been properly impaneled. Following that hearing, the defendant again appealed his convictions and sentences, urging numerous assignments of error. This court affirmed the defendant's convictions. However, the defendant's sentences were vacated and set aside.

This court ruled that the trial court did not adequately state for the record the sentencing considerations set forth in LSA-C.Cr.P. Art. 894.1 which would justify the imposition of maximum, consecutive penalties for the offenses, particularly since the two offenses arose from "the same act or transaction, or constituted parts of a common scheme or plan." LSA-C.Cr.P. Art. 883. This court also noted that although the trial court referred to the defendant as an habitual offender, the record did not reflect any habitual offender proceedings or adjudication.

We further noted defendant's indigency and that the trial court could not impose default time in lieu of payment of a fine upon an indigent defendant, when to do so would cause the term of imprisonment to exceed the statutory maximum. This court also stated that the trial court could not order that default time, in lieu of payment of the fines, be served at hard labor.

On the basis of these inadequacies in the record of the original sentencing, we remanded the case to the trial court for resentencing. State v. Mims, 524 So.2d 526 (La.App. 2d Cir.1988).

On remand, the trial court made a part of this record the defendant's habitual offender hearing of March 20, 1988 which revealed that he had been adjudicated an habitual offender as a result of a 1982 conviction for attempted distribution of marijuana. The trial court also included in its reasons for sentence the record of the prior sentencing. The court then sentenced the defendant to nine years at hard labor on each count, and imposed fines of $15,000.00 on each count. The sentences were again ordered to be served consecutively and in default of payment of the fines, the defendant was ordered to serve an additional one year on each count.

The defendant again appealed his sentences. Defendant has asserted that the trial court imposed excessive sentences, failed to provide adequate reasons for the sentences, failed to comply with the orders of this court in resentencing the defendant, and erred in directing that the sentences be served consecutively. The defendant also *763 argues that because he is indigent, the sentencing court erred in imposing default time in lieu of payment of the fines.

EXCESSIVE SENTENCE

In determining whether a sentence is excessive, the test imposed by the reviewing court is two-pronged. First, the record must show that the trial court took cognizance of the factors set forth in LSA-C. Cr.P. Art. 894.1 which enumerates criteria to consider in determining whether a sentence is excessive. State v. Sepulvado, 367 So.2d 762 (La.1979); State v. Hammonds, 434 So.2d 452 (La.App.2d Cir. 1983), writ denied 439 So.2d 1074 (La.1983); State v. Tully, 430 So.2d 124 (La.App. 2d Cir.1983), writ denied 435 So.2d 438 (La. 1983).

While the trial court need not articulate every aggravating and mitigating circumstance outlined in LSA-C.Cr.P. Art. 894.1, the record must reflect that the court adequately considered those guidelines in particularizing the sentence to the defendant. State v. Smith, 433 So.2d 688 (La.1983); State v. Hammonds, supra; State v. Cunningham, 431 So.2d 854 (La. App. 2d Cir.1983), writ denied 438 So.2d 1112 (La.1983). The important elements which must be considered are the defendant's personal history (age, family ties, marital status, health, employment record), prior criminal record, seriousness of offense and the likelihood of rehabilitation. State v. Jones, 398 So.2d 1049 (La.1981).

After determining whether the trial court has sufficiently complied with the provisions of LSA-C.Cr.P. Art. 894.1, the reviewing court must then determine whether the sentence imposed is too severe given the circumstances of the case and the background of the defendant.

The sentencing court 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 court. State v.

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Cite This Page — Counsel Stack

Bluebook (online)
550 So. 2d 760, 1989 WL 100440, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-mims-lactapp-1989.