author: TATE, Justice. MARCUS, Justice SUMMERS, Chief Justice

text:
    STATE of Louisiana v. Michael TRAHAN. STATE of Louisiana v. Romela Grace TRAHAN.
    Nos. 62484, 62485.
    Supreme Court of Louisiana.
    Dec. 15, 1978.
    Dissenting Opinion Jan. 31, 1979.
    Kenneth E. Badon, Lake Charles, for Michael Trahan. Oliver “Jackson” Schrumpf, Sumpter & Schrumpf, Sulphur, for Romela Grace Trahan.
    William J. Guste, Jr., Atty. Gen., Barbara B. Rutledge, Asst. Atty. Gen., Frank T. Salter, Dist. Atty., J. B. Jones, Jr., Asst. Dist. Atty., for plaintiff-appellee.
   TATE, Justice.

The dispositive issue of these consolidated appeals is whether the defendants were deprived of due process rights by the trial court’s denial of their pre-sentencing request for disclosure of allegedly untrue prejudicial information in their pre-sen-tence investigation reports, in order to afford them an opportunity to contradict or explain it.

We hold that the trial court was in error in denying this request. Therefore, we vacate the sentences and remand for re-sentencing in accordance with the views expressed herein.

Context Facts

The defendants, Michael and Romela Tra-han, pleaded guilty to distribution of three bags of PCP, La.R.S. 40:967, for $30 to two undercover agents on October 13, 1977, wherein the defendant wife helped her husband after the sale. The husband, Michael, additionally pleaded guilty to distribution of two lids of marijuana, La.R.S. 40:966, for $20 to an undercover agent five days later on October 18, 1977.

Prior to sentencing, the defendants moved for disclosure of presentence information which is allegedly materially and prejudicially false in that it incorrectly indicates that the defendants had been involved in extensive criminal activity. The defendants also requested the opportunity to controvert false information and offer explanations as to any unfavorable hearsay material in such presentence investigation reports.

The trial court denied these requests, with an explanation to be noted below. It sentenced the husband to seven years imprisonment at hard labor on the PCP-distribution charge and to four years (concurrent) on the marijuana-distribution charge. It sentenced the wife to four years imprisonment on the PCP-distribution charge.

At the time of the offenses, the husband was 25 years of age, the wife 21, and they had a three-year-old daughter. They had no prior criminal records, and the husband held gainful employment. The husband was a lifelong resident of Cameron Parish.

Before sentencing the husband, the trial court asked him: “Is it not correct, Mr. Trahan, that you sold illegal drugs over a considerable period of time?” Trahan admitted that he had sold drugs, but stated it was only for two or three months. In stating the reasons for imposing penitentiary imprisonment, La.C.Cr.P. art. 894.1 (1977), of seven years, the trial court noted the seriousness of the offense, in that drug offenses may have many victims.

In denying the defendant’s requests for the disclosure of allegedly false information of extensive criminal activity and for an opportunity to contradict or explain it, the trial court stated that it had not considered any hearsay information in the pre-sentence reports.

The pre-sentence investigation reports, which have been furnished under seal to this court, allege that the husband was the chief drug dealer in Cameron Parish and might have been so engaged for as long as eight years. The statements were primarily by law enforcement officials and consisted of conclusions rather than particulars. In the wife’s pre-sentence report is included at least one conclusory evaluation that she was as deeply implicated as her husband.

The sentencing proceedings relating to a third person who pleaded guilty with the defendants to the PCP-distribution offense have been made part of the present records. In that case, the (same) trial court admittedly based his sentence for this confederate upon the pre-sentence report. The substance of this report was that this confederate was just a follower of the husband Trahan and was not as dangerous as Tra-han, who was allegedly chiefly responsible for the confederate’s involvement. The present defendants’ assignments of error include the contention that derogatory information in their co-defendant’s pre-sen-tence report attempted falsely to place the primary blame for the incident upon the present defendant husband.

Legal Principles Applicable

In State v. Bosworth, 360 So.2d 173, 175 (La.1978), we reiterated: “Where, in imposing a heavy sentence, the trial court relies upon pre-sentence information which is materially false or which furnishes invalid information, the defendant must be given an opportunity to deny or explain such substantially significant misinformation. State v. Segers, 357 So.2d 1 (La.1978); State v. Underwood, 353 So.2d 1013 (La.1977).”

We there explained that the accused has a right to access to such records, upon request and appropriate allegation (as here), in order to avoid an excessive sentence improperly resulting from materially false information, with the court (after an in camera examination) to withhold only such information which is not relevant or which is protected by confidentiality. 360 So.2d 175. We noted also that due process and fairness values require that the defendant be afforded an opportunity to deny or to explain prejudicial information otherwise secret to the sentencing judge himself. 360 So.2d 175. We finally noted that no full scale evidentiary trial is required at the sentencing hearing, at which the defendant is given an opportunity to deny or explain adverse information which is prejudicially false or misleading. 360 So.2d 176-77.

Under these principles, the trial court was in error in denying the defendants’ motions for disclosure and for an opportunity to contradict or explain substantially prejudicial information.

The state contends, however, that these principles are inapplicable because the trial court did not rely upon the hearsay in the pre-sentence investigation reports. The conscientious trial court stated with undoubted sincerity that it disregarded the hearsay reports of extensive criminal activity-

Nevertheless, the trial court was exposed to the allegedly grossly prejudicial misinformation, which the defendants had no opportunity to rebut. The record as a whole indicates a reasonable probability that the court may have been at least unconsciously influenced by such information, in imposing such heavy sentences upon first offenders for what on the record (unless one considers the pre-sentence reports) appear to be small transactions of an isolated nature. See State v. Underwood, 353 So.2d 1013, 1019 (La.1977). Due process principles previously cited require that the accused be afforded an opportunity to dispel such factors tending to justify severity of sentence, if false.

Decree

For the reasons assigned, we vacate the sentences, and we remand these cases to the Cameron Parish district court for re-sentencing consistent with the views set forth above.

CONVICTIONS AFFIRMED; SENTENCES VACATED, AND REMANDED FOR RE-SENTENCING.

SANDERS, C. J., dissents.

MARCUS, J., dissents and assigns reasons.

SUMMERS, J., dissents and will assign reasons.

MARCUS, Justice

(dissenting).

I do not find that a sufficient showing was made that the pre-sentence investigation report contained materially and preju-dicially false information relied upon by the trial judge in imposing sentences to say that trial judge abused his discretion in refusing to allow defendants access to information contained in said report. La. Code Crim.P. art. 877. Accordingly, I respectfully dissent.

SUMMERS, Chief Justice

(dissenting).

By his own admission the distribution of drug transactions which are the subject of this prosecution were not “small transactions of an isolated nature” as the majority finds. To the contrary, defendant Michael Trahan in answer to the trial judge’s question stated that he had sold illegal drugs “about two or three months.”

As I understand the statements of the trial judge, he did not consider any hearsay contained in the presentence reports and, in fact, did not complete a study of the report after defense counsel sought its disclosure. In sum, it may be readily inferred from this record that the presentence reports played no part in the determination of defendant’s sentence. This is manifested in part by the fact that the trial judge did not impose a “heavy” sentence under the standards articulated by the majority in State v. Underwood, 353 So.2d 1013 (La.1977). He imposed a concurrent, rather than a consecutive, sentence; and the concurrent sentences did not exceed the maximum for the more serious offense. The seven-year sentence falls within the limits suggested in Underwood “not exceeding from five to ten years as a maximum.” The sentence, therefore, was neither excessive nor heavy.

It is therefore an unnecessary infringement upon the sentencing prerogative of the trial judge and an encumbrance to the orderly administration of justice to set aside this sentence and order a hearing on the ground that this defendant was deprived of due process. The sole reasons assigned for this action of the Court was that defendant was denied access to a presentence report which played little if any part in the sentencing. And, assuming the contents of the report were untrue and unfavorable to defendant, that fact should not alter the perfectly reasonable sentences imposed here, sentences which could be justified on the simple basis of the offenses involved. La. Code Crim.Pro. art. 877. As the trial judge observed, distribution of narcotics is not an offense against a single victim, the offense affects many victims and it is a menace to society as a whole.

      . As part of the agreement that he plead guilty, the state dismissed an additional charge of distribution in February, 1978, of PCP against the husband.

      . In view of our disposition, we do not reach the substantial issue that, for the wife at least, the statement of considerations and the factual basis for deciding upon imprisonment did not satisfy the requirements of La.C.Cr.P. art. 894.-1. The arrest report shows that the wife merely sealed the envelopes of PCP after her husband had sold them. See 894.1 B(4), (7), (8), (10), (11). Articulated reasons may (or may not) have disclosed a basis for sentencing of the wife to a substantial penitentiary term not indicated by the circumstances of her involvement in the isolated offense which was dominated by her husband.

      .See Tr. 39-40: “ * * * when you spoke to me yesterday, Mr. [attorney], concerning this, we had not yet completed studying the pre-sen-tence report, and after you spoke to me, I did not read them further. It certainly is not the Court’s desire .or intent to be influenced by hearsay and what other people might feel or think concerning these two defendants. In arriving at the sentence which the Court has arrived at, the Court has not considered any hearsay which may be contained in the pre-sen-tence reports. For these reasons, I am denying both motions.”

      . See La.R.S. 15:574.12 F. For instance, the evaluations by law enforcement officials were obviously not made with the intention that they be kept confidential. In case of doubt as to the lay persons, excision of their names would in almost every instance preserve confidentiality where derogatory information might be inferred by the trial court to have been given in confidence.

      . As indicated in the appendix to Bosworth, the hearing is not a full-scale trial, with the state being required to prove its contentions of extensive criminal activity beyond a reasonable doubt. For instance, the testimony or report of the arresting officer might provide a reasonable basis for concluding extensive commercial drug operation by the husband from October, 1977 through February, 1978 (see footnote 1), providing the accused is given the opportunity to explain or rebut it. If (as the presentence report indicates, incorrectly the defendants claim) the husband had been engaged for several years in a drug operation, it is sufficient that the state show the factual basis for this contention rather than it being required to prove numerous transactions beyond a reasonable doubt: the accused must, however, be given the opportunity to contradict or explain this showing. See 360 So.2d 176, Appendix to Bos-worth.


source: Caselaw Access Project

author: WILLIAM A. CULPEPPER, Justice Ad Hoc. MARCUS, Justice

license: Public Domain

text:
    STATE of Louisiana, Respondent, v. Larry NETTLETON, Terry Nettleton and Kerry Nettleton, Relators.
    No. 62491.
    Supreme Court of Louisiana.
    Jan. 29, 1979.

      Charles J. Hanemann, Henderson, Hane-mann & Morris, Houma, for defendants-re-lators.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Norval J. Rhodes, Dist. Atty., for plaintiff-respondent.
   WILLIAM A. CULPEPPER, Justice Ad Hoc.

The district attorney of Terrebone Parish received complaints that shrimp fishermen were being harassed while trying to operate their boats in the area of Bayou Barre. Accompanied by members of the State Police Water Patrol, an agent of the Louisiana Wildlife and Fisheries Commission, and an officer of the State Police Narcotics Division, the district attorney conducted a surveillance on the night of June 10,1976 from a shrimp boat belonging to Mr. Aaron Pel-legrin, one of the complainants. Based on the occurrences of that night, the State of Louisiana, through the district attorney for the Thirty-second Judicial District, Terre-bone Parish, Louisiana, filed on July 2,1976 twelve Bills of Information against three brothers, Kerry, Larry and Terry Nettleton, charging them with the following crimes:

“Defendant Kerry Nettleton
Kerry Nettleton
Kerry Nettleton
Kerry Nettleton
Larry Nettleton
Larry Nettleton
Larry Nettleton
Larry Nettleton
Terry Nettleton
Terry Nettleton
Terry Nettleton
Terry Nettleton
Crime
Reckless operation of a motorboat
Operating a motorboat without life jackets
Operating a motorboat without a fire extinguisher
Operating a motorboat without boat registration Reckless operation of a motorboat
Reckless operation of a motorboat
Operating a motorboat without running lights
Operating a motorboat without life jackets
Aggravated assault with a motorboat
Operating a motorboat without running lights
Reckless operation of a motorboat
Reckless operation of a motorboat
Statute Allegedly Docket Violated Number
La. R.S. 34:851.9 63,398
La. R.S. 34:851.8 F 68,399
La. R.S. 34:851.8 G 68,400
La. R.S. 34:851.4 A 68,401
La. R.S. 34:8451.9 68,402
La. R.S. 34:851.9 68,403
La. R.S. 34:851.8 B 68,404
La. R.S. 34:851.8 F 68,405
La. R.S. 14:37 68,406
La. R.S. 34:851.8 B 68,407
La. R.S. 34:851.9 68,408
La. R.S. 34:851.9 68,409”

The defendants moved to quash all twelve Bills of Information on the grounds that the Federal Boat Safety Act, 46 U.S. C.A., Sec. 1459, pre-empts the field of boat safety which the above state statutes purport to regulate. The district court denied the motion to quash. Defendants applied to the Louisiana Supreme Court for a writ of certiorari, which was denied for the reason that relators had an adequate remedy by review, in the event of conviction.

The twelve charges were consolidated and fixed for trial by jury of six members on April 5, 1978. Over defense objection, the Court severed the four charges against Kerry Nettleton, on the ground that the maximum cumulated imprisonment for the four charges against Kerry did not exceed six months. The trial of the charges against Kerry before a judge alone was postponed to a later date.

The charges against Larry and Terry proceeded to trial on April 5, 1978 before a jury of six members. Terry and Larry were each convicted of violating the charge of operating a motorboat without running lights, LSA-R.S. 34:851.8 B. They were acquitted of all other charges. The district judge imposed upon each the maximum fine of $25 and ordered that each pay one-half of the court costs, in default of which they were sentenced to serve a period of thirty days each in the parish jail.

All three defendants applied for writs of certiorari and review. Terry and Larry, the defendants who were tried and convicted on one charge each, rely on Assignments of Error 1 through 4 for reversal of their convictions and sentences. Kerry Nettle-ton, whose trial was severed over his objection, relies on Assignment of Error # 1, and he also argues in Assignment of Error # 5 that because the maximum cumulated fines for the four charges against him exceed $500, he is entitled to trial by jury of six.

ASSIGNMENT OF ERROR NO. 1

In Assignment of Error No. 1, the defendants argue that the trial court should have granted the motion to quash the Bills of Information because the Federal Boat Safety Act, particularly 46 U.S.C.A., Sec. 1459, and the regulations promulgated thereunder, pre-empt the field of boat safety on navigable waters, on which La.R.S. 34:851.8 B purports to legislate. 46 U.S. C.A., Sec. 1459, relied on by defendants as the basis for federal pre-emption, reads as follows:

“Sec. 1459. Federal preemption in issuance of standards
“Unless permitted by the Secretary under section 1458 of this title, no State or political subdivision thereof may establish, continue in effect, or enforce any provision of law or regulation which establishes any boat or associated equipment performance or other safety standard, or which imposes any requirement for associated equipment, except, unless disapproved by the Secretary, the carrying or using of marine safety articles to meet uniquely hazardous conditions or circumstances within the State, which is not identical to a Federal Regulation issued under section 1454 of this title. Pub.L. 92-75, Sec. 10, Aug. 10, 1971, 85 Stat. 217.”

Section 1454 of the Federal Statute provides that the secretary may issue regulations establishing minimum safety standards for boats, equipment on boats, classes of boats, navigational lights, etc. The regulations contained in the Western Rivers Rules of the Road, 33 U.S.C.A., Sec. 301, et seq., provide in pertinent part:

“Sec. 321. Lights of motor boats (Rule 12)
“Motorboats, when not engaged in towing, shall be lighted as provided by the Motorboat Act of April 25, 1940, as amended.”

The Federal Motorboat Act of 1940, 46 U.S.C.A., Sec. 526, et seq., provides for the classification of motor boats and the lights required thereon. The La.Statute under which defendants were charged, is Act 43 of 1960, LSA-R.S. 34:851.1, et seq., whose stated purpose is to promote safety in the use of motor boats and vessels, and to promote uniformity of laws relating thereto. Larry’s shrimp boat is a motorboat, 32 feet long. Terry’s shrimp boat is a motorboat, 23 feet long. LSA-R.S. 851.8 A, which provides for the classification of motorboats, and 851.8 B, which provides the lights required on each class, are identical to the Federal Motorboat Act of 1940, 46 U.S.C.A., Sec. 526b, insofar as they apply to the motorboats of Larry and Terry at issue here. Thus, the state statute complies with the requirement of 46 U.S.C.A., Sec. 1459, quoted above, that any state regulations be identical to the federal regulations, insofar as the charges at issue here are concerned.

Defendants* initial argument that the Federal Boat Safety Act pre-empts the field of boating safety on the navigable waters of the State of Louisiana has no merit. The Federal Statute, 46 U.S.C.A., Sec. 1459, expressly provides that the states may establish boat safety regulations, so long as they are identical to the federal regulations. Defendants cite no statute or jurisprudential authority to the contrary.

In a supplemental brief filed after oral argument in this Court, defendants concede that the regulations provided in the Federal Motorboat Act of 1940, 46 U.S.C.A., Sec. 526b, are identical with those under La. Revised Statutes 34:851.8 A and B. However, defendants now argue that the Secretary of Transportation has issued other regulations, 29 C.F.R. Sec. 25.01-10 and Sec. 24.05-15 dealing with lighting requirements on motorboats subject to the Western Rivers Rules. They argue that these rules require that motorboats carry either the navigational lights required by the Federal Motorboat Act of 1940, or, alternatively, those called for by the International Regulations For Preventing Collisions At Sea, 1972 (72 COLREGS), 33 C.F.R., Sec. 87.1, et seq., Appendix A. Defendants contend that since the Federal Regulations give the owner of the boat the option of two different kinds of lights, and the state statute does not, the state regulations are not identical to the federal and are pre-empted.

This argument has no merit. The purpose of the federal pre-emption provided in 46 U.S.C.A., Sec. 1459 is to promote boat safety through uniformity of regulations, including those applicable to navigational lights. It is inconsistent with this purpose to argue that since a federal regulation permits different optional lights, the state statute is pre-empted and therefore unenforceable because it does not also permit optional lights.

For the reasons stated, we find no merit in Assignment of Error No. 1.

ASSIGNMENT OF ERROR NO. 2

In Assignment of Error No. 2, the defendants Larry and Terry argue that the trial judge erred in conferring with a juror, first without counsel, then with counsel, outside the defendants’ presence, concerning the juror’s ability to render a verdict.

The record shows that after the first day of the trial, a juror, Hank Verdin, went to the office of the trial judge and stated that he could not serve as a juror because he was a commercial fisherman, the same as the defendants, and he could not decide the case. The district judge immediately summoned counsel for the State and for the defense to his chambers and explained the problem. Counsel were requested to research the law and advise the Court the next day.

When the trial resumed the next morning, defense counsel objected to the conference in chambers between the juror and the judge and to the conference between the judge and counsel on the grounds that defendants had not been present at either conference. The judge noted that defense counsel had not requested that defendants be present on the previous day and so found that no prejudice had occurred. The juror was then called into court and testified as to what had happened the afternoon before. The judge then proposed three alternatives: (1) Keeping the juror, (2) dismissing him and using an alternate, and (3) declaring a mistrial. The judge and the prosecutor initially were in favor of calling an alternate, but defense counsel requested that the jur- or not be disqualified without legal cause. After an extended discussion, during which the State at one time moved for a mistrial and was opposed by defense counsel, the juror was allowed to remain and the trial continued.

In brief, defense counsel relies on the case of State v. White, 244 La. 585, 153 So.2d 401 (La.1963), in which a juror, suspecting that he may be disqualified after five days of trial, asked to talk to the trial judge. The judge called both counsel into his chambers to confer with the juror, but defense counsel objected because the conference was being held outside the defendants’ presence. After the recess, and in open court, the judge substituted the alternate juror and refused to allow defense counsel to cross-examine the juror that was excused. On rehearing, this court stated that after a juror is selected “the accused has a right to have the particular jurors selected to try him decide his fate.” This court explained that the trial judge had in effect permitted the juror to excuse himself. LSA-R.S. 15:362 requires that the judge ascertain from the facts whether there is cause to discharge a juror.

This case is distinguished from White. In White, the judge excused without legal cause a juror who had already been selected. In the instant case, the judge acquiesced in defense counsel’s request to keep the disputed juror in accordance with White. We find no merit in Assignment of Error No. 2.

ASSIGNMENT OF ERROR NO. 3

In Assignment of Error No. 3, Larry and Terry argue the district judge erred in overruling the defendants’ objection that the State had failed to comply with Article 766 of the Code of Criminal Procedure by merely paraphrasing the Bills of Information, when that article requires that the opening statement of the State shall explain the nature of the charge, and set forth, in general terms, the nature of the evidence by which the State expects to prove the charge.

La.Code of Criminal Procedure, Article 766 states:

“Art. 766. Opening statement by state; scope
“The opening statement of the state shall explain the nature of the charge, and set forth, in general terms, the nature of the evidence by which the state expects to prove the charge. Source: New; cf. former R.S. 15:333.”

It is well settled that the scope of the opening statement is left to the sound discretion of the trial judge. State v. Kinchen, 342 So.2d 174 (La.1977); State v. Bolen, 338 So.2d 97 (La.1976); State v. Schoonover, 252 La. 311, 211 So.2d 273 (La.1968). Moreover, the State need not give in, minute detail all evidence by which it intends to prove its case. State v. Sneed, 316 So.2d 372 (La.1975); State v. Roquemore, 292 So.2d 204 (La.1974); State v. Himel, 260 La. 949, 257 So.2d 670 (La.1972). Furthermore, this Court has rejected a similar attack where defendant maintained that the State failed to assert in its opening statement that an essential element of the crime charged existed. Kinchen, supra. Finally, while there does appear to be some support for defendants’ contention, State v. Ducre, 173 La. 438, 137 So. 745 (La.1931), a review of the State’s opening statement does not appear to support the position that the State only paraphrased the charges against defendant. The State elaborated upon the burden of proof it needed to meet and the fact that no juror would be allowed to consult a transcript of testimony during its deliberations. The prosecutor further stated that he would put witnesses on the stand that were present when the alleged offenses occurred and’ gave their names and occupations.

We find no merit in Assignment of Error No. 3.

ASSIGNMENT OF ERROR NO. 4

In Assignment of Error No. 4, the defendants Larry and Terry argue the district judge erred in taxing them with costs of court of all eight charges on which they were tried, although they were convicted of only two charges and acquitted on six charges.

The minutes of the district court for April 13, 1978 show that in Case No. 68404, State of Louisiana v. Larry Nettleton, and Case No. 68407, State of Louisiana v. Terry Nettleton, which were the cases charging operation of a motorboat without running lights, each of the accused was sentenced as follows:

“Whereupon, after having had their say, each accused was sentenced to pay a fine of $25 and costs of court (each to pay one-half of the costs) and, in default of which, they are to serve a period of thirty (30) days in the parish jail.”

La.Code of Criminal Procedure Article 887 provides in pertinent part:

“A defendant who is convicted of an offense shall be liable for all costs of the prosecution, whether or not costs are assessed by the court. A defendant shall not be liable for costs in the event of an acquittal or a dismissal of the prosecution.”

LSA-R.S. 13:846, 13:847 and 13:848 provide for the assessment of costs, the amount thereof, and their collection in criminal cases.

We cannot agree with counsel for defendants that the above quoted sentence in the two cases charging operating a motorboat without running lights taxed the defendants with the costs of court of those cases in which they were acquitted. We understand the sentence to mean that the defendants are taxed with costs only in the two cases in which they were convicted, and that each is to pay one-half of the combined costs. We find it improper to combine the costs of the two cases and tax each defendant with one-half. The costs may not be the same in both cases. Each defendant should be taxed only with the costs in the case in which he was convicted. We will amend the sentence accordingly.

The record before us does not show what costs of prosecution have been or will be assessed, or the method of computation. If and when the clerk of court proceeds under LSA-R.S. 13:848 to collect the costs, the defendants may at that time raise objection to the amount or the method of computation.

ASSIGNMENT OF ERROR NO. 5

Assignment of Error No. 5 concerns only the defendant, Kerry Nettleton, whose trial was severed and postponed to a later date before a judge alone. Kerry argues the district judge erred in denying him a jury trial on the four charges listed above, since the aggregate fines which could be imposed on conviction of these four charges exceeds $500, even though the aggregate imprisonment does not exceed six months. The aggregate fines could be $575.

La.Const. of 1974, Art. 1, Sec. 17 provides in pertinent part:

“A case in which the punishment may be confinement at hard labor or confinement without hard labor for more than six months shall be tried before a jury of six persons, five of whom must concur to render a verdict.”

Although the constitutional provision does not apply to fines, the legislature adopted La.Code of Criminal Procedure, Art. 779 which provides:

“Art. 779. Trial of misdemeanors
“A. A defendant charged with a misdemeanor in which the punishment may be a fine in excess of five hundred dollars or imprisonment for more than six months shall be tried by a jury of six jurors, five of whom must concur to render a verdict. “B. The defendant charged with any other misdemeanor shall be tried by the court without a jury.
Amended by Acts 1968, No. 635, Sec. 1; Acts 1974, Ex.Sess. No. 23, Sec. 1, eff. Jan. 1,1975; Acts 1975, 1st Ex.Sess. No. 16, Sec. 1, eff. Jan. 28, 1975.”

In State v. McCarroll, 337 So.2d 475 (La. 1976), this Court reversed prior jurisprudence and held that where two or more charges are joined for trial, the right to a jury must be determined by the aggregate punishment which may be imposed in that case. McCarroll involved aggregate imprisonment exceeding six months, rather than fines exceeding $500. However, the rule stated in McCarroll is controlling here.

We conclude the trial judge erred in denying Kerry Nettleton a trial by jury of six.

For the reasons assigned, the convictions and sentences of Larry Nettleton and Terry Nettleton are affirmed, except that each is taxed only with the costs of prosecution in the case in which he was convicted. The order of the trial judge denying Kerry Nettleton a jury trial is reversed and set aside, and his case is remanded to the trial court for further proceedings according to law and the views expressed herein.

MARCUS, J., concurs in part and dissents in part and assigns reasons.

MARCUS, Justice

(concurring in part and dissenting in part).

I concur with the affirmances of the convictions and sentences of Larry and Terry Nettleton. However, I dissent from the setting aside of the order of the trial judge denying Kerry Nettleton a jury trial. The state has the right to institute criminal prosecutions against those who have violated a criminal law. La.Code Crim.P. art. 381. In the instant case, if the state had elected to charge the four offenses in the same information, it would have thereby conferred upon defendant the right to a jury trial, assuming arguendo that the rationale of State v. McCarroll, 337 So.2d 475 (La.1976) would apply. However, this case does not involve a McCarroll situation since the state elected to charge the multiple offenses involved herein in separate infor-mations. From the record, it appears that the four charges against Kerry Nettleton were to be consolidated for trial. Defendant Kerry Nettleton argues that he is thus entitled to a jury trial since the aggregate fines which could be imposed on conviction exceed five hundred dollars. I do not agree. Defendant Kerry Nettleton has the right to choose either to be tried separately on each information or, upon his own motion, to have the four informations consolidated for trial. La.Code Crim.P. art. 706. He may not, however, elect to consolidate in order to create a McCarroll situation and thus confer upon himself the right of a jury trial. This right arises only if the state charges a defendant with two or more offenses in the same information creating a McCarroll situation. La.Code Crim.P. art. 493; State v. McCarroll, supra.

       Chief Judge William A. Culpepper of the Court of Appeal, Third Circuit, participated in this decision in place of Chief Justice Sanders, retired.


author:
TATE, Justice.
     MARCUS, Justice

text:
    STATE of Louisiana, Appellee, v. Frankie SEPULVADO, Appellant.
    No. 62622.
    Supreme Court of Louisiana.
    Jan. 29, 1979.

      Mark H. Kramar, Leesville, for appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., James L. Davis, Dist. Atty., Abbott J. Reeves, Asst. Dist. Atty., for appellee.
   TATE, Justice.

This appeal involves judicial review of a criminal sentence for excessiveness in accordance with Article 1, Section 20 of the Louisiana Constitution of 1974.

The defendant, Frankie Sepulvado, was convicted for a violation of La.R.S. 14:80 (1950), carnal knowledge of a juvenile. The trial court sentenced him to serve three years and six months at hard labor.

This court affirmed the conviction on appeal, but vacated the sentence on the ground that the trial court had failed to comply with the sentencing guidelines of La.C.Cr.P. art. 894.1. State v. Sepulvado, 359 So.2d 137 (La.1978). The case was remanded to the trial court for resentencing in accordance with the statute.

The trial judge held an evidentiary hearing. He again sentenced Frankie Sepulva-do to serve three years and six months at hard labor. At the resentencing, the judge stated certain facts as the basis for his conclusion that the prison sentence was necessary, in an effort to comply with La.C. Cr.P. art. 894.1 (1977). The defendant now appeals the sentence, arguing primarily that the sentence was excessive under the circumstances, and thus violative of La. Const. Art. 1, Section 20.

I.

Frankie Sepulvado, an unmarried young man, 18 years of age at the time of the episode, and Jamie S., a 15V2-year-old unmarried girl, went riding in his car on the evening of April 1, 1977. In the early morning hours of the next day, according to her testimony, they had sexual intercourse.

Jamie and Frankie, who are not closely related, had known each other for about four years prior to that time. In the days before this incident, they had been planning to run away together. On the evening of April 2, they did go to Texas, staying for about two weeks before responding to messages from Jamie’s parents entreating them to return to Sabine Parish, Louisiana, where they both lived. There was testimony that Jamie’s mother had promised to permit the couple to marry if they returned.

On arriving in Zwolle, Frankie was arrested and charged with violating La.R.S. 14:80 (1950), carnal knowledge of a juvenile. The statute then provided in pertinent part:

“Carnal knowledge of a juvenile is committed when anyone over the age of seventeen has sexual intercourse, with her consent, with any unmarried female person of the age of twelve years or over, but under the age of seventeen years, where there is an age difference of greater than two years between the two persons. .
“Whoever commits the crime of carnal knowledge of a juvenile shall be imprisoned, with or without hard labor, for not more than five years.”

At the time of the offense, Frankie Sep-ulvado was 18 years and 23 days old. Jamie S. was 15 years and nine months old. Jamie testified that she was a virgin prior to the incident in question. Nothing in the record suggests that their sexual act was anything other than the voluntary act of two equally willing and infatuated teenagers.

Under these circumstances, we must consider whether a sentence of three years and six months imprisonment in the state penitentiary system, is an excessive sentence as imposed on the one party who is unquestionably the only one legally at fault under the statute.

II.

The Louisiana Constitution of 1921 merely prohibited “cruel and unusual punishment.” Article I, Section 12. In a deliberate change of wording, the new Louisiana Constitution of 1974 broadened the constitutional provision (and the duty of our courts in review of sentences) by providing, Article I, Section 20: “No law shall subject any person ... to cruel, excessive, or unusual punishment.” (Italics ours.)

The deliberate inclusion of a prohibition against “excessive” as well as “cruel and unusual” punishment adds an additional constitutional dimension to judicial imposition and review of sentences. By it, the excessiveness of a sentence becomes a question of law reviewable under the appellate jurisdiction of this court. See La.Const. art. 5, Section 5(C).

In addition to deliberate change in the constitutional wording, the constitutional intent reflected by the additional constitutional prohibition against “excessive” punishments may also be deduced from the historical jurisprudential gloss given to the former constitutional prohibition against punishments merely “cruel and unusual”, as well as from the legislative history within the constitutional convention of the adoption of Article 1, Section 20, which is entitled “Right to Humane Treatment.”

III.

The Eighth Amendment to the federal constitution prohibits “cruel and unusual” punishments. It was long ago held that excessiveness was a factor to be considered in determining whether a punishment was within the constitutional prohibition of that clause. Weems v. United States, 217 U.S. 349, 30 S.Ct. 544, 54 L.Ed. 793 (1910). However, later cases gradually subsumed the excessiveness element within the other, more literal tests for determining whether the “cruel and unusual” standard was violated, giving rise to a general rule against appellate review for excessiveness per se.

See, e. g., Robinson v. California, 370 U.S. 660, 82 S.Ct. 1417, 8 L.Ed.2d 758 (1962); Trop v. Dulles, 356 U.S. 86, 78 S.Ct. 590, 2 L.Ed.2d 630 (1958); Comment, Appellate Review of Sentences and the Need for a Reviewable Record, 1973 Duke L.J. 1357 (1973).

Nevertheless, the federal appellate courts gradually developed a number of devices, such as discerning the absence of support in the record for the sentence, or a failure to exercise discretion given the trial judge by statute, to effect review of outrageous sentences. Comment, cited above, at 1973 Duke L.J. 1360-1370.

Commentators have generally urged appellate review for excessive sentences as the better rule. See Id., esp. authorities cited at 1973 Duke L.J. 1357 n.5; Hopkins, Reviewing Sentence Discretion: A Swift Method of Appellate Action, 23 U.C.L.A. L.Rev. 491 (1976); Comment, Appellate Review of Sentences: A Survey, 17 St. Louis U.L.J. 221 (1972); Note, Appellate Review of Sentencing Procedure, 74 Yale L.J. 378 (1964). Either by statute or by judicial decision, such review became available in at least twenty-six states. See Comment, cited above at 17 St. Louis U.L.J. 232.

IV.

In Louisiana, under article I, Section 12 of our former constitution of 1921, which tracked the language of the Eighth Amendment, this court declined to review sentences for excessiveness. See, e. g., State v. Polk, 258 La. 738, 247 So.2d 853 (1971).

To determine that the adoption of the Louisiana Constitution of 1974 effected a change in the law on this point, it might not be necessary to go beyond the basic principle of constitutional construction that no word should be treated as mere surplusage. Nevertheless, additionally its legislative history supports the view that the new constitutional provision was intended to provide appellate review of sentences for excessiveness.

The convention floor debate transcripts reflect that Delegate Weiss had been assigned as the floor manager for the section on the Right to Humane Treatment. Documents of the La.Const’l Convention of 1973 Relative to the Administration of Criminal Justice 929-30 (La.Const’l Records Comm’n). Delegate Willis asked him if the clause would “not allow me to appeal and have the judge review a sentence on the grounds that the sentence is excessive and so the punishment is excessive?” Delegate Weiss answered “yes,” but suggested that “an amendment is forthcoming in this regard.” Records of the La.Const’l Convention of 1973: Convention Transcripts 1190 (44th day Proceedings, Sept. 8, 1973) (La. Const’l Records Comm’n); Documents, cited above, at 690. The clause was never amended, however; and the availability of individual sentence review stands as intended within the original wording.

Comprehensive law review commentaries by two of the leading figures of the constitutional convention, written shortly after the adoption of the 1974 constitution, also underscore this fundamental change in the law.

Professor Lee Hargrave of the Louisiana State University law school faculty served as the coordinator of legal research for the Constitutional Convention of 1973. He directed research for the committee on the Bill of Rights and Elections. In discussing this provision of the new constitution, Professor Hargrave states in his article, “The Declaration of Rights of the Louisiana Constitution of 1974”, 35 La.L.Rev. 1, 63 (1974):

“The prohibition against cruel or unusual punishment is derived from the eighth amendment and Article I, § 12 of the 1921 constitution. The new section, however, adds that no law shall subject any person to ‘excessive punishment,’ broadening the pri- or prohibition against ‘excessive fines’. This gives the courts, in the exercise of their judicial review power, a basis for determining that sentences, whether fine, imprisonment or otherwise, though not cruel or unusual, are too severe as punishment for certain conduct and thus unconstitutional. It is a basis for extending the court’s control over the entire sentencing process.”

One of the co-authors of the Constitutional Convention’s Declaration of Rights, now Article I of the Louisiana Constitution of 1974, State Representative Louis “Woody” Jenkins, wrote in “The Declaration of Rights”, 21 Loy.L.Rev. 9, 39 (1975):

“The prohibition against ‘excessive . punishment’ makes a great change in the law and requires the courts to do justice in each case, regardless of any legislative assertion. This standard allows the courts to avoid strained interpretations of what is cruel and unusual punishment, in order to reach the sometimes more important question of whether the punishment does, in fact, fit the crime. For example, it is much easier to find that imposition of the death penalty is excessive as punishment for such crimes as rape and kidnapping than that it is cruel or unusual. . . Mandatory penalties are particularly suspect because they frequently have no relation to the magnitude of the offense.”

V.

It may be argued that Section 20 scrutiny of the punishment meted out under a law must be limited to the facial constitutionality of the penalty provisions. However, under the federal Eighth Amendment, “[i]t is also settled that the proscription of cruel and unusual punishments forbids the judicial imposition of them as well as their imposition by the legislature. Weems v. United States, 217 U.S. 349, 378-82, 30 S.Ct. 544, 553-555, 54 L.Ed. 793.” Furman v. Georgia, 408 U.S. 238, 241, 92 S.Ct. 2726, 2728, 33 L.Ed.2d 346 (concurring opinion).

The constitutional provision was entitled the “Right to Humane Treatment” by the constitutional delegates, thus at least implying its intended protections of individuals against any excessive punishment by state action. Its legislative history at the constitutional convention likewise indicates that its purpose is to prevent any person from being subjected to excessive punishment: While the section provides literally that “no law shall subject” any person to such punishment, this phrasing was due partly to considerations of style, and partly to the desire of some delegates to clarify the scope of the prohibition against euthanasia, also dealt with in section 20. See detailed summary of legislative history in State v. Williams, 340 So.2d 1382, 1386-87 (La.1977) (concurring opinion). (Actually, every imposition of a statutory punishment is done by a law, notwithstanding the interposition of a judge as the law’s instrument.)

VI.

In providing a wide range of criminal sanctions for violations of a statute, the legislature obviously intends that the judge shall exercise his sentencing discretion to impose sentences gradated according to the individualized circumstances of the offense and of the offender.

In the case of La.R.S. 14:80; for instance the legislature entrusted to the judge a wide range of sentencing discretion: probation (supervised or not), suspended sentence or not, imprisonment in the parish jail or in the penitentiary system, sentences from one day up to five years.

Thus, under some circumstances — such as the prior history or criminal dispositions of a certain offender, the particular helplessness of a certain victim, or a particularly vicious method of committing the crime— the maximum penalty under the statute might clearly be justified; while the same punishment might be considered excessive if applied to a more typical offender who commits the crime under less gross circumstances.

For instance, a penitentiary sentence of the maximum five years might easily be justified for a mature man who had seduced a frightened and confused twelve-year-old girl, under circumstances falling just short of rape, and who had exhibited similar behavior in the past but showed little hope of reformation. Yet such a penalty might be excessive if applied to a love-struck teenager, of otherwise umblemished character and record, who commits the offense in the course of a teenage romance.

The appellate enforcement of the constitutionally intended prohibition of excessiveness — of punishment disproportionate to the offense — must therefore be something more than the passing on the constitutionality of a statute penalty in a vacuum devoid of content concerning the circumstances of the crime and of the offender. This is not to gainsay that the trial judge is given a wide discretion in the imposition of sentence within statutory limits, that the sentence imposed by him should not be set aside as excessive in the absence of a manifest abuse of his discretion, and that great weight must be given to his factual characterizations of the aggravating and mitigating circumstances justifying more severe punishment.

VII.

We thus find that the imposition of a sentence, although within the statutory limit, may violate a defendant’s constitutional right against excessive punishment that is enforceable by this court on appellate review of his conviction.

The general purposes of sentence review include the development and application of criteria for sentencing and the promotion of respect for the law by increasing the fairness and by correcting abuses of the sentencing power. See American Bar Association Standards for Criminal Justice Relating to Appellate Review of Sentences, Standard 1.2 (1968); see also ABA, Standards Relating to Sentencing, Alternatives and Procedures, Standards 7.1-7.5 (1968). These purposes are obviously intertwined. Respect for the law will increase if the courts are able to point to articulable criteria to justify sentencing disparities (both between offenders sentenced in the same court and offenders sentenced in different courts).

In many of the twenty-odd jurisdictions with sentence review, on a case by case basis the jurisprudence evolved the standards whereby trial judges may avoid the imposition of excessive sentences, and whereby the appellate court reviews sentences alleged to be excessive, while nevertheless preserving judicial efficiency, fairness to the defendant, and appropriate deference to the trial court’s proper exercise of its wide discretion.

Fortunately, in Louisiana, our legislature has announced standards which, properly applied, will supply much of the protection against excessive sentence to which a defendant is entitled under Article I, Section 20 of the constitution. By Act 635 of 1977 the legislature Article 894.1 to our Code of Criminal Procedure, it has provided by statute certain criteria which may justify a sentence of imprisonment and certain other criteria which, while not controlling the sentencing judge’s discretion, must be given weight in favor of suspending the sentence of a defendant or placing him on probation rather than sentencing him to custodial confinement. Analogically, these criteria provide guidance as to whether the sentence should be closer to the maximum rather than to the minimum statutory range of sentence, if the sentencing judge does indeed determine that imprisonment rather than suspension of sentence or probation is the appropriate disposition.

The standards provided by the statute are similar to those evolved in other American jurisdictions, including those in which sentence review is an established feature of the administration of criminal justice. The standards of La.C.Cr.P. art. 894.1 are, in fact, identical to those recommended by the American Law Institute’s Model Penal Code, Section 7.01 (1962), an acknowledgedly comprehensive and authoritative statement of principles formulated after extensive consultation and studies founded on American experience. Other studies of American sentencing practices and goals have recommended or ascertained similar principles for the sentencing decision.

Accordingly, we find that the statutory criteria legislatively provided by La.C. Cr.P. art. 894.1 (1977), which are similar to those evolved by courts in other American jurisdictions with a constitutional or statutory duty to review excessiveness, provide appropriate criteria by which to measure whether a sentence within statutory limits is nevertheless excessive, either by reason of its length or because it specifies confinement rather than less onerous sentencing alternatives.

VIII.

La.C.Cr.P. art. 894.1(C) provides that the trial court shall state for the record the considerations taken into account and the factual bases therefor in imposing sentence. This, of course, is an important aid to this court when called upon to exercise its constitutional function to review a sentence complained of as excessive. See Comment, Appellate Review of Sentences and the Need for a Reviewable Record, 1973 Duke L.J. 1357, 1370-76.

The trial judge in the present instance afforded the defendant, upon the remand, a sentencing hearing at which he permitted the introduction of - showings as to sentence-influencing factors and consideration. We commend him for so doing, since this helpful practice avoids remands to determine the basis of the sentence, see, e. g., State v. Segers, 357 So.2d 1 (La.1978) and State v. Underwood, 360 So.2d 173 (La.1977), is fundamentally fair in affording the accused an opportunity to rebut or explain unfavorable facts, and may well be the most appropriate and expeditious mechanism to explain the context in which the wide sentencing discretion of the trial court is to be exercised.

Due to the wisdom of the present trial judge in providing the defendant a sentencing day in court, we are able to review without further remand the defendant Sep-ulvado’s contention of sentence excessiveness on its merits.

IX.

In resentencing Frankie Sepulvado on remand from this court, the trial court relied upon as circumstances indicating imprisonment was appropriate (1) its view that any punishment less than a prison sentence would “deprecate the seriousness of the offense,” La.C.Cr.P. art. 894.1(A)(3), and (2) its belief that Sepulvado’s past conduct indicated that he might commit another crime during the period of probation or suspended sentence, La.C.Cr.P. art. 894.1(A)(1), and (3) its assumption that the defendant was in need of correctional treatment or a custodial environment, La.C.Cr.P. art. 894.1(A)(2), in order to become a responsible member of society.

Having found that imprisonment was justified by any one of the factors it found to be present, the court did not feel it necessary “to individually negate the eleven (11) suspension, or probation, considerations” in La.C.Cr.P. art. 894.1 B. Tr. 109.

If, as the trial court implied, imprisonment is mandated because the statute indicates imprisonment “should” be imposed if any one of the aggravating circumstances is found to exist, this is an erroneous construction of the statute. We find no intent to shackle the sentencing discretion of the trial judge in this regard, especially since the very next sub-section of the statute provides that certain mitigating factors “shall be accorded weight in its [the trial court’s] determination of suspension of sentence or probation.” La.C.Cr.P. art. 894.1 B.

By reason of the constitutional prohibition against excessive sentences provided by Article 1, Section 20, the sentencing judge does not possess unbridled discretion to impose a sentence within statutory limits, regardless of mitigating facts. Considering the nature and circumstances of this crime, as well as the youth and background of this offender, the present trial court abused its discretion by refusing to consider the numerous factors within the statutory criteria provided by La.C.Cr.P. art. 894.1 B (see footnote 4 above) which strongly indicate that no imprisonment at all be imposed, even in the local parish jail (let alone three and one-half years in penitentiary confinement).

Moreover, it is fairly clear that two of the aggravating factors found by the trial court are not of such a factual nature as to be considered an aggravating factor within the meaning of the statute, and it is at least doubtful that the third factor could be so characterized either.

The trial court primarily relied upon an incident of Frankie Sepulvado’s past conduct, in determining that he was in need of correctional treatment, or of confinement because he might otherwise during the period of probation commit a similar offense. The only past conduct to which the judge referred, aside from the offense for which convicted, was that Frankie had had sexual intercourse with another girl, whom he later married.

The facts of the prior incident merit discussion, because they weighed heavily in the trial judge’s conclusions.

In early 1976, about a year prior to the offense for which he was convicted, Frankie Sepulvado had sexual intercourse with the girl who later became his wife. The trial court stated, apparently in error, that Frankie was over seventeen at the time, and noted that the girl was fifteen, thus implying that this, too, was a criminal act.

The court estimated Frankie’s age from his wife’s testimony that the sexual intercourse had occurred in March of 1976, and from the fact that a baby was subsequently born to the girl on November 25, 1976. Frankie did not become seventeen, however, until March 10, 1976. Estimating from the birth of the baby, it would seem that the sexual intercourse occurred either during February or during the very early days of March, when Frankie was not yet seventeen.

In any case, since the girl was fifteen, it was most unlikely that she was fully two years younger than Frankie, and therefore it is highly improbable that this incident amounted to a prior instance of criminal conduct.

The judge emphasized that the girl had become pregnant, had given birth to Frankie’s child, and that they later married. None of these developments renders the initial act of sexual intercourse more culpable.

The fact that Frankie’s child was born in November 1976 does bear unfavorably on his conduct during the offense for which he was convicted, which occurred several months later. However, he was still unmarried at the time of the offense, and the record does not reflect what had happened between him and the mother of his child. Given the wide range of possibilities, many of which would not imply fault on his part, and some of which might even help to explain his rushing into a relationship with Jamie, the fact of his one former teenage romance, standing alone, does not justify an assessment of Frankie as an unusually likely recidivist, nor as a dangerous criminal.

At the evidentiary hearing, evidence of several statutory mitigating factors was presented:

(a) The victim of the defendant’s criminal conduct induced or facilitated its commission. See article 894.1(B)(5). There was testimony that the girl had asked Frankie to go away with her several times before the night of the offense; that they had gone to elaborate lengths to meet one another on prior occasions; that after the night of the offense, she actually did voluntarily go away with him for two weeks; and that both parties had willingly participated. Although this does not legally excuse Frankie, it should have been taken into consideration on the question of sentencing.

(b) The defendant had no history of prior delinquency or criminal activity, and had led a law-abiding life for a substantial period of time before the commission of the instant crime (and also after the crime). See article 894.1(B)(7). Uncontroverted testimony showed that Frankie’s reputation in the community, aside from this crime, was good. Indeed, the pre-sentence report, according to the trial judge, showed that Frankie was a good risk for a probation sentence. He had no prior criminal record. His conduct after the crime, in that he got married and obtained steady work, tends to negate the suggestion of likely recidivism.

(c) The imprisonment of defendant would entail excessive hardship to his dependents. See art. 894.1(B)(11). Frankie Sepulvado is the sole support of his wife and child.

(d) There were substantial grounds tending to excuse or justify the defendant’s criminal conduct, though failing to establish a defense. See art. 894.1(B)(4). It is important to remember that this concept is not the same as justification in a legal sense. Frankie Sepulvado was guilty of the crime for which he was convicted. Nevertheless, for the purpose of determining which offender gets the maximum (five-year) sentence, and which gets a short sentence or probation, it is necessary to consider the context in which the illegal conduct occurred.

It is a fact that many young people, male and female, engage in sexual intercourse. In 1976, 2.7% of all 16-year-old girls in the United States, and 6.4% of all 17-year-olds, had borne at least one child. U. S. National Center for Health Statistics, Vital Statistics of the United States, Table 1-17 (1978). About half of these children were illegitimate. Id., Tables 1-32. These statistics, including those on abortions (331 reported for every 1000 live births, U. S. Department of Commerce, Bureau of the Census, Statistical Abstract of the United States 56 (1977)), indicate that a great number of unmarried 15- and 16-year old girls have engaged in sexual intercourse resulting in pregnancy and suggest that a greater number have done so without pregnancy.

Without applauding the sexual permissiveness of the times, we can only note that in the social context of the times this type of offense between young people is committed many times without criminal prosecution and that, in ordinary sentencing practice, it is not regarded as so serious as to require imprisonment. See XI below and see footnotes 5 and 6 above.

With regard to the community and individual context of this offense, the uncontro-verted testimony at the evidentiary hearing was that marriage at about age 16 is not uncommon in Sabine Parish, the place of the offense.

The girl (Jamie S.) was almost 16 years of age when the offense took place. Frankie Sepulvado had just had his eighteenth birthday. Thus he was about a year over the seventeen-year age limit prescribed by La.R.S. 14:80 for the offender in carnal knowledge, and she was about a year under the age limit prescribed for the victim. Since the statute requires, as an additional element of the crime, a two-year gap in the ages of the two parties, this conduct would not have been criminal if Jamie had been four months older or Frankie four months younger.

The context that emerges is of two young people, of marriageable age in their community, and of an age at which sexual experimentation is not uncommon, carrying on a relationship that was normal and predictable at least up to the night of the offense. They had known each other for four years, and the difference of about two years in their ages was not significant. At the trial there was testimony that they both believed they were in love.

X.

Nevertheless, the conduct in which they mutually engaged does subject Frankie to criminal punishment under La.R.S. 14:80. However, that statute is also designed to punish a wide range of other offenders.

Frankie was sentenced to serve three yearn and six months at hard labor, a penalty very near the maximum of five years. (What penalty, then, should be given to a thirty-year old man who seduces a twelve-year-old child, perhaps a relative who does not yet know the facts of life?)

Frankie was given three and one-half years at hard labor despite the fact that he is (with the sole exception of this offense) a responsible member of his community, with no prior record, a job, a family, and a favorable pre-sentence report indicating unlikelihood of recidivism. (What sentence then is to be given to an irresponsible drifter with a prior record (outside the scope of the multiple offender statute), who is judged a likely recidivist?. And suppose it is this irresponsible drifter who seduced a naive twelve-year-old girl?)

To give Frankie Sepulvado a sentence so near the statutory maximum, thus leaving only a negligible gap between his punishment and the penalty for the same crime committed in aggravated circumstances by a mature individual is to “deprecate the seriousness” of the latter offense rather than of Frankie’s conduct.

XI.

Under the nature and circumstances of this case, the sentence of Frankie Sepul-vado to imprisonment is clearly excessive. The aggravating circumstance, if any, is so clearly and greatly outweighed by the mitigating circumstances which point to a suspended sentence or probation.

We are re-enforced in this view by the sentencing principle applied in numerous other jurisdictions (see footnotes 5 and 6) that probation rather than imprisonment is appropriate for sexual misconduct between consenting teenagers.

We are further re-enforced in this view by statistics furnished us by the state department of corrections as to all persons convicted of violations of La.R.S. 14:80 (carnal knowledge) who (as of January, 1979) were under confinement in its institutions or under probation supervision by it. These statistics show that of the 65 persons within institutional or probational custody of the department, only 8 had been given prison sentences. Of those imprisoned, the youngest was 20 years of age (for an offense committed May 24, 1978), and most imprisoned offenders were substantially older. Of the 57 under probational supervision, only 12 were under 20 years of age.

These 65 persons include only those whose violations were deemed serious enough to require either institutional confinement with the department or else supervised probation by it. They do not include the offenders given suspended sentences or probation without supervision. The statistics themselves do not indicate the aggravating circumstances which influenced the sentencing judge to find imprisonment appropriate in those cases in which the offender was sentenced to imprisonment.

Nevertheless, the statistics do indicate that, despite the widespread violations of the statute among young people suggested by the earlier social statistics cited, not one individual under the age of 20 has been sentenced to imprisonment with the Department of Corrections as of the date this opinion is written.

By any available standard, the sentence of Frankie Sepulvado to imprisonment with the Department of Corrections for three and one-half years is clearly excessive.

Conclusion

The imposition of a prison sentence — in this case three and one-half years at hard labor for a teenaged defendant — is so inappropriate that it represents a clear abuse of the trial court’s sentencing discretion which violates the defendant’s right against excessive punishments, La.Const. art. 1, section 20.

The present offense is less serious than other crimes punishable by penitentiary imprisonment, and even than the range of other conduct punishable under the same statute. Nor is there any evidence that a prison term would help to “reform” Frankie Sepulvado, who is now a responsible member of the community. To send him to prison would impose a burden on his dependents, and — given the realities of prison life — would involve a risk of serious harm to the development of his character.

There is nothing on the record to justify a deviation from the normal practice of giving young first offenders under La.R.S. 14:80 probation and/or a suspended sentence. Further, circumstances do not indicate that any suspended sentence should be of an extended nature, or to Department of Corrections rather than to the parish prison, nor that the period of supervised probation, if any, should be for any extended period of time. We take into consideration that the offender has already been confined in the parish prison for a very short period before release on bail.

Decree

The sentence of the trial court is set aside, and the case is remanded for resen-tencing in accordance with the views herein expressed.

SENTENCE SET ASIDE; CASE REMANDED FOR RE-SENTENCING.

SUMMERS, C. J., dissents.

MARCUS, J., dissents and assigns reasons.

MARCUS, Justice

(dissenting)

La.Const. art. 1, § 20 (1974) provides that “[n]o law shall subject any person . to cruel, excessive, or unusual punishment.” (emphasis added). Hence, I consider that our review is limited to whether the “law” subjects any person to excessive punishment, not whether a sentence in a particular case is excessive. Accordingly, I respectfully dissent.

       BLANCHE, J., not participating.

      . After the offense was committed, the statute was amended to increase the maximum imprisonment to ten years. Act 539 of 1977.

      . The concept was that a sentence was “ ‘so disproportionate to the offense as to constitute a cruel and unusual punishment.’ ” Weems, cited in text, at 30 S.Ct. 549.

      . In 1977, the maximum sentence imposable was increased to ten years, see footnote 1, but the sentencing judge was still given the wide discretion as to what type and length of sentence was imposed on the particular offender. The 1977 enactment is not applicable to the present case, since enacted subsequently to the commission of the present crime.

      . As enacted by the 1977 legislature, La.C.Cr.P. art. 894.1 provides:
      A. When a defendant has been convicted of a felony or misdemeanor, the court should impose a sentence of imprisonment if:
      (1) There 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 of correctional treatment or a custodial environment that can be provided most effectively by his commitment to an institution; or
      (3)A lesser sentence 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 to 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 sustained;
      (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 commission 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 defendant 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.

      . The mitigating criteria are marked similar to those which the English courts evolved during their long experience with sentence review in order to promote fairness and some consistency in sentencing. The English courts have developed detailed guidelines and standards. See D.Thomas, Principles of Sentencing 170-202 (1970).
      This authoritative study of the English jurisprudential standards also includes a study of the principles applicable to the range and type of sentence for particular types of crimes, noting the factors found to be influential by the reviewing court, for instance, in reducing the sentence from confinemen| to probation or instead in upholding the sentences as imposed. As to unlawful sexual intercourse with young girls, Id. pp. 113-17, the study notes that the court “tends to make a clear distinction between cases which involve the exploitation of an immature girl by an older man, and cases of sexual experimentation or displays of mutual affection between adolescents. In cases of the latter kind, the offense is not considered particularly serious, and the Court generally considers that a modest fine or discharge [from any sentence or supervised probation] is considered appropriate.” Id., p. 113.

      . See, e. g., American Bar Association Standards for Criminal Justice Relating to Sentencing Alternatives and Procedures, Standards 2.2, 2.3(c), 2.4(c), and 2.5(c) and commentary (n) to Standard 2.5(c) (1968); Dawson, Sentencing (American Bar Foundation Administration of Criminal Justice Series) 79-99 (1969).
      It is of some interest that, with regard to the present crime, Dawson’s 1969 study indicates the national American practice in sentencing to be similar to the English (see footnote 5) under circumstances similar to the present: “Probation is the likely disposition of statutory rape cases in which the age difference between the male and female is not great and she was clearly a willing participant.” Dawson, cited above, at p. 91.
      For an excellent bibliography of published books and articles on all aspects of sentencing, including those now before the court, see J. Ferry and M. Dravitz, Issues in Sentencing; A Selected Bibliography (National Institute of Law Enforcement Criminal Justice, Washington, 1978). See also W. S. Carr and V. J. Connolly, Sentencing Patterns and Problems: An Annotated Bibliography (American Judicature Society, Chicago, 1973) and R. C. Hand and R. G. Singer, Sentencing Computation Laws and Practice: A Preliminary Survey (American Bar Association Commission on Correctional Facilities and Services, Washington, 1974).

      . The nature and function of the sentencing hearing, which need not necessarily be a full evidentiary proceeding, is discussed by us in State v. Bosworth, 360 So.2d 173 (La.1978).

      . Under the facts of this case, to be set forth below, this young offender was no more in need of correctional treatment or custodial environment than would be any other young offender of good background and without prior record convicted of a nonviolent crime.
      The ABA Standards for Criminal Justice Relating to Sentencing Alternatives and Procedures (1968) explain the purpose of the second improperly found aggravating factor as follows: The factor “would authorize imprisonment on the ground that a contrary disposition would unduly depreciate the seriousness of the offense. The theory underlying commitment on such a basis is similar to the idea of general deterrence, and yet more limited in effect. For certain offenses, such as embezzlement from a bank, the failure to impose a prison sentence might be unduly encouraging to similar attempts in the future and might destroy the confidence of the public in the system. Incarceration on such a theory might also be justified in the case of a particularly heinous murder, even though it was reasonably clear that the offender would not be likely to commit future offenses and that special treatment was unlikely to have any particular effect.” Standard 2.5(c)(iii), as explained by Commentary (n). That the present is not regarded as this type of offense, except in gross exceptions, is indicated by the usual sentencing pattern of probation or suspended sentence, see footnotes 5 and 6, and Louisiana experience to be noted in text below at XI of this opinion.

      . These statistics are included in an appendix to this opinion, which will not be published with this opinion but which will remain a public record of this court.

      . The defendant also attempted to introduce evidence that suspended sentences that had been imposed for the two other recent convictions for the offense. Upon the state’s objection, this evidence was incorrectly held to be irrelevant. 1 Wigmore on Evidence, Section 4(8) (3d ed. 1940); cf., La.Sup.Ct. Rule 28 (Rule 905.9.1), Section 4(b)(i) (1978).


author: TATE, Justice.

text:
    Warren J. TULLIER, Sr., et al., Plaintiffs-Appellees-Respondents, v. TANSON ENTERPRISES, INC., Defendant-Appellant-Relator.
    No. 62636.
    Supreme Court of Louisiana.
    Jan. 29, 1979.

      Leon Gary, Jr., Gary & Field, Baton Rouge, for defendant-appellant-relator.
    A. J. Spedale, Spedale, Sanders, Pennington & Grimley, Baton Rouge, for plaintiffs-appellees-respondents.
   TATE, Justice.

The issue before us is whether a tenant is required to continue to maintain leased premises as a shopping center, where the long-term lease itself contains no clause expressly requiring the premises to be so used, but riders attached to the lease indicate that the parties foresaw at the time of its confection that at least the initial use would be for a shopping center.

The issue arose in litigation whereby the owners of the premises sought to cancel the lease upon certain contentions of default. Ultimately, the court of appeal denied cancellation, but it agreed with the trial court that the lease intended that the property be used for shopping center purposes. 359 So.2d 654 (La.App. 1st Cir. 1978). Upon the application of the tenant (“Tanson”), we granted certiorari, 362 So.2d 578 (1978), in order to decide the issue stated in the initial paragraph of this opinion.

Background Facts

The details of the lease will be set forth more fully below. By way of background, the following are some of its relevant provisions:

The lease of 20 acres of vacant ground had been executed in 1958 for a term of 25 years, with the tenant being given the right to renew it successively for a total of 99 years in all. The tenant’s obligations under the lease and its renewals were to pay a fixed monthly rental and to pay all expenses (taxes, etc.) of the property.

The tenant was given the right to assign or sublet without consent of the landlord-owner, to construct buildings and other improvements on the land, or to demolish any so built (provided a building of equal value was constructed to replace it). The buildings constructed by the tenant were to become the property of the landlord-owner.

The plaintiff-landlords are the widow and' heirs of the original lessor. Through a series of assignments, the present defendant tenant (“Tanson”) now holds the ground lease.

A shopping center with two buildings and a large parking lot was constructed by Tan-son’s predecessor tenants on about ten acres of the tract, soon after the lease was executed in 1958. The present tenant, Tanson, has held the lease since 1963.

However, before the present litigation, Tanson lost its two major tenants (which operated retail outlets in the two buildings under two separate subleases). The buildings, especially one of them, had then fallen into disrepair.

Due to a decline in the neighborhood, Tanson was unable to secure subtenants to operate retail stores on the leased premises. It therefore planned, upon repairing the buildings, to do so for the purpose of renting them for warehouse or storage facilities.

The plaintiff-landlords rely upon a rider to the lease in their contention that the buildings must be repaired to conform with the initially intended use of the lease premises for a shopping center, despite the absence of a clause in the lease expressly providing this to be the purpose of the lease. The previous courts agreed with this contention and held that the intention of the parties to the lease was to utilize the premises for a shopping center (only).

The primary significance of this holding in the present litigation is that it determines the extent and nature of the required repairs to the two buildings on the premises: Must they be restored to be fit for occupancy and use by retail outlets in a shopping center, although the neighborhood will no longer support a shopping center? Or, instead, may they be repaired to serve as warehouses, for which subtenants may be secured on the present rental market?

Applicable Legal Principles

The Louisiana Civil Code provides that a tenant is required to utilize the property leased as a good administrator and according to the use for which it was intended by the lease. Article 2710(1) (1870). The landlord-owner may obtain the dissolution of the lease if the tenant makes another use of the premises than that for which it was intended. Article 2711 (1870).

The lease itself may expressly provide the purpose for which the premises are leased and for restrictions on the use of the leased premises. Reilley v. Kroll, 197 La. 790, 2 So.2d 214 (1941). However, in determining the “intended use” under the lease, the courts may, in the absence of express lease provision, look to the surrounding circumstances, such as the nature, situation and previous use of the property. New Orleans and Carrollton R.R. v. Darms, 39 La.Ann. 766, 2 So. 230 (1887); Comment, The Louisiana Law of Lease, 39 Tul.L.Rev. 798, 856-59 (1965); Planiol, Civil Law Treatise, Vol. 2, No. 1691 (LSLI Translation; 1959).

In his occupancy of the property the tenant is obligated not to use the premises for a purpose inconsistent with that contemplated by the parties at the time they confected the lease. Caffin v. Scott, 7 Rob. 205 (La.1844).

Relying upon these principles, the plaintiff-landlords point out that, at the initiation of the lease, the parties contemplated that the property (or at least a substantial portion of it) would be used as a shopping center. They thus contend that the initially intended use of (part of) the property is the only use contemplated by the parties.

This contention might be forceful, were we concerned with a lease shown to have been intended to confer some advantage to the landlord by continued operation of the premises as a shopping center. However, the present lease construed as a whole, to the contrary, shows that the tenant was intended to have free use of the leased premises for whatever lawful purpose it desired, nor does it reflect that within the contemplation of the parties any restriction upon such use by the tenant was contemplated by the parties:

The Present Lease

In 1958, the late Benjamin Tullier and his wife leased a vacant 20-acre tract of land to the original tenant. Through a series of assignments Tanson, the present defendant-tenant, acquired all lessee rights (and became subject to all lessee obligations) under the lease.

The tenant’s principal obligation under the lease was to pay a fixed monthly rental of $750 and all taxes and other expenses of the property. The lease was renewable for up to 99 years.

Under the terms of the lease, the tenant was afforded the right to make at its own expense any improvements, alterations, or additions to the premises as it desired, which were to become the property of the landlord. (Art. 15.) The tenant was also given the right to demolish any structures so built, providing that it constructed a new building of equal or greater value. (Art. 15.) The tenant also agreed to keep in good repair the roof, exterior and interior, and appurtenances (including sidewalks) of any buildings thereafter placed upon the premises. (Art. 11.)

The landlord also agreed to deliver the premises to the tenant “free of liens, encumbrances, and violations of laws, ordinances, and regulations relating to the use, occupation and/or construction of improvements on the demised premises.” (Art. 8.)

The lease also granted the tenant the “full and complete right to assign the whole of this lease or any part thereof or to sublet the whole or any portion of the demised premises.” (Art. 22.)

The only provision restricting the use of the premises is that set forth in Article 7 of the lease: “The premises hereby demised shall not be used for any unlawful purpose during the term of the lease.” The lease does not contain any covenant requiring the tenant to either continuously use or continuously occupy any part of the leased premises.

Thus, the provisions of the lease as a whole grant the tenant the virtually unrestricted right to use or alter or sublease or assign the premises as he wills. During the initial or extended (up to 99 years) terms of the lease, the tenant’s principal obligation, aside from paying the taxes and expenses of the property, was principally to pay the fixed monthly rental of $750 and to keep in repair any buildings that within his discretion he had built upon the property (or to replace them with buildings of equal value if in his discretion he demolished them).

Nevertheless, the plaintiff-landlords, in urging that the two buildings on the premises must be kept in repair for chain-store occupancy purposes, rely upon two riders executed in connection with the construction of one of the buildings (on an acre of the 20-acre tract) and upon two zoning clauses, as showing an intention to restrict the use of the premises to a shopping center.

The intermediate court essentially agreed with this contention.

Did the Riders and Zoning Clauses Restrict the Intended Use of the Premises?

In finding that the lease implicitly required the use of the property as a shopping center, the court of appeal relied solely on Riders C and D, which respectively conditioned the effectiveness of the lease upon the tenant’s consummation of a sublease with a chain store, and required the tenant to build a building “designed for chain store occupancy,” and on the fact that during the term of the lease — that is, from the time the buildings were built until their abandonment by the subtenants — they were used as chain stores.

This conclusion fails to give sufficient weight to all the circumstances surrounding the lease.

At the time the lease was confected, the property was undeveloped. The lease was for a long term, renewable for up to 99 years. This gives rise to an inference that the parties could not predict with certainty what the most profitable use of the property would be, and would have wanted the intended use to be flexible.

This inference of flexibility is bolstered by the fact that the lease provides for a fixed monthly rental rather than a rental based on a percentage of sales, revenues or profits. The latter arrangement, a common one in shopping center leases, would have suggested that the lessor had an interest in continued use of the property for shopping center purposes.

The numerous provisions cited above, warranting the property as free from “agreements” or “encumbrances, ordinances and regulations relating to the use, occupation and/or construction of improvements,” and granting the tenant the right to make changes and improvements and to sublet without permission of the lessor, suggest a broad range of intended uses.

Finally, the “use clause” expressly prohibits unlawful uses of the property, and makes no mention of any other prohibition. This gives rise to the inference that no other prohibition on the use of the leased premises was intended: It would have been easy for the parties to prohibit any use other than for a shopping center, and they did not.

Even in the absence of these indicia, which suggest that the parties intended flexibility, the circumstances relied upon by plaintiff-landlords would leave the intended use ambiguous:

The use of the property after the confection of the lease, without more, indicates only that the lessee found it profitable to use the property for a shopping center. It does not necessarily suggest any intention to exclude other uses.

Rider “C”, providing that the lease would not be effective unless the tenant could obtain a chain-store subtenant, can easily be construed as a protection for the lessee (an “investor/tenant” who never contemplated actual occupation of the premises except through a subtenant). Although it incidentally casts light on the initial use to which the lessee intended to put the property, it is hardly unambiguous evidence that the lessor intended to bind the lessee to such a use for 99 years.

Likewise, Rider “D,” binding the tenant to construct a building suited for chain-store occupancy and of a stipulated minimum value, can be seen as merely part of the consideration paid by the lessee: at the termination of the lease, the lessor will own developed rather than undeveloped property. There is at least room for doubt whether this provision also reflects the intent to establish an exclusive permissible use of the building so constructed on one acre of the premises, let alone of the entire leased twenty acres.

Article 6a or Rider “E,” likewise relied upon by plaintiff-landlords, might also be construed as establishing an “intended use,” by conditioning the lease on a change to commercial zoning. (Shopping centers require commercial zoning, whereas warehouses are an industrial use.) However, commercial zoning would permit a wide range of uses other than chain-store shopping centers, the argued exclusive use; and in any case, this clause is fully compatible with construction as a further protection for the investor/tenant, who indisputably wished initially to build a shopping center on the property.

Thus, all the circumstances relied upon as suggesting that there might have been one “intended use” within the meaning of articles 2710 and 2711 are equally consistent with a more flexible construction of the lease. Consequently, the rule that ambiguities in a lease should be construed in favor of the tenant will govern. Governor Claiborne Apartments, Inc. v. Attaldo, 231 La. 85, 90 So.2d 787 (1956), and cases cited therein. Moreover, the circumstances discussed above, affirmatively suggesting that the parties intended flexibility in the use of the property, would probably resolve the ambiguity in favor of the tenant even in the absence of this settled rule of law.

Initial Use the Only Intended Use?

The plaintiff-landlords essentially rest their contention upon the theory that the initial use of leased property is ipso facto the only intended use.

Nothing in the Civil Code articles suggests such a doctrine. The French authorities cited to us only state that, where the lease is silent, the use which the leased premises should receive should be determined according to the circumstances. The example given by Planiol — “For example, it is often easy to see that a house has been rented to live in and not for a cafe or a hotel,” Planiol, cited above at Vol. 2, No. 1691 — does no more than suggest, as Louisiana decisions have held, that the tenant may not use the premises for a purpose inconsistent with that contemplated by the parties at the time they confected the lease.

In the present lease, however, the parties contemplated, as we have noted, free and flexible use by the tenant of the premises during this long-term lease. The landlord’s only shown interest is to receive fixed monthly rentals and the ownership and continued repair of buildings erected by the tenant, with the latter being given full discretion to demolish any such structures provided he replaces them with those of equal or greater value.

Here, for instance, the landlord has no economic interest in the use of the premises for a shopping center rather than as a warehouse. Nor does the landlord have any shown benefit in having the structures on the premises constructed by the tenant to be devoted to one purpose rather than another, provided that they are kept in good repair for delivery to the landlord at the expiration of this long-term lease. Cf. Caffin v. Scott, 7 Rob. 205 (La.1844), where the use of the leased first floor for a kitchen instead of its intended use as a store caused great inconvenience to upper-store tenants who threatened to abandon the premises.

We are thus unable to agree that the initially intended use of the premises in this long-term lease was the only intended use of the premises required or permitted by the lease.

Conclusion

The recent jurisprudence of the courts of appeal has established the distinction we draw here, between an initially permitted, as contrasted with a required, use of leased property within the intent of Civil Code Articles 2710 and 2711.

Thus in Riverside Realty Co. v. National Food Stores of Louisiana, Inc., 174 So.2d 229 (La.App. 4th Cir. 1965), certiorari denied 247 La. 1037, 175 So.2d 647 (1965), even a provision that the rent was to be based on a percentage of total revenue from the leased property (or a stipulated minimum rental, whichever was the greater figure) was not enough to require the tenant to continue operation of its unprofitable gro-eery store .instead of using it for storage purposes only.

And in Mancuso v. Sigmor Distributing Service, Inc., 356 So.2d 1035 (La.App. 1st Cir. 1977), the lease contained two clauses similar to those relied upon here by the plaintiff-landlords: (1) a clause granting lessee the right to make improvements “for the purpose of operating thereon a service station or filling station,” and (2) a provision conditioning the lease on the lessee’s obtaining the necessary permits to build and operate a service station. Nevertheless, the lease was held not to reflect any exclusive intended use of the property, since “[h]ad it been intended that the premises be restricted to only service station use a simple unambiguous statement to that effect would have been easily incorporated in the lease.” 356 So.2d 1036.

Accordingly, where the lease is silent as to the intended use of the premises, we hold that the circumstances must clearly show that the parties intended only a certain use of the property in order for such use to be deemed the exclusively “intended” use within the meaning of Articles 2710 and 2711. Evidence of the contemplated initial use is relevant in this regard, but it is not decisive. Where the silent lease and the surrounding circumstances are ambiguous concerning intended use, this ambiguity must be resolved in favor of the lessee.

Where, as here, the entire thrust of the lease was to allow the tenant full flexibility of development of the property, the lease was for a long term, the property was initially undeveloped, the rental was a fixed monthly amount, and there were no other special circumstances such as adjacent property belonging to the landlord and adversely affected by the use made of the leased property, we conclude that no exclusive use as a shopping center was intended.

Decree

The judgment of the court of appeal 'is reversed insofar as it required the use of any part of the leased property as a shopping center, or prohibited use of such property as a warehouse, and judgment is accordingly rendered for the defendant-relator, Tanson Enterprises, Inc. The costs of the proceedings in this court are assessed against the plaintiffs-respondents.

REVERSED AND RENDERED.

SUMMERS, C. J., dissents for the reasons assigned by the Court of Appeal. See 359 So.2d 654.

BLANCHE, J., not participating.