text:
    John W. HAYES, Petitioner, v. FLORIDA PAROLE AND PROBATION COMMISSION, Respondent.
    No. AH-352.
    District Court of Appeal of Florida, First District.
    June 2, 1982.
    Petitioner pro se.
    Malcolm S. Greenfield, Gen. Counsel, Tallahassee, Florida Parole and Probation Commission, for respondent.
   PER CURIAM.

Petitioner, an inmate under the supervision of the Florida Department of Corrections, received a five-year sentence on January 23,1981. He remained incarcerated in the Bay County jail until he was delivered to the custody of the Department of Corrections on October 11, 1981. Section 947.-16(1), Fla.Stat.(1981), requires the Florida Parole and Probation Commission (Commission) to interview inmates with sentences of five years or less “within 6 months after the initial date of confinement in execution of the judgment.” Petitioner was not interviewed before July 23, 1981, but was scheduled for his parole interview in March, 1982. He filed this petition for writ of mandamus to compel the Commission to interview him promptly. We grant the petition.

The issue is whether confinement in a county jail prior to delivery to the custody of the Department of Corrections constitutes confinement in execution of the judgment as contemplated in § 947.16(1), Fla. Stat.(1981). That question appears to have been answered by the Commission’s own Rule 23-21.06(1), Fla.Admin.Code, which provides:

Upon receipt of notice that an inmate has been committed to the Department or to a county jail for a cumulative sentence of 12 months or more, the Administrator of Parole Grant and Work Release shall schedule an initial interview of the inmate.
In order to meet statutory time frames, inmates serving an indeterminate sentence or a sentence of 5 years or less shall be scheduled for initial interview not later than the end of the 5th month of their confinement ...

We conclude that petitioner should have been interviewed within six months of the Commission’s receipt of notice of petitioner’s incarceration. Accordingly, the Commission is directed to determine when it received notice of petitioner’s confinement in execution of his judgment, to conduct the prescribed initial interview if that has not already been done, and to establish petitioner’s presumptive parole release date using the rules that were in effect at the time petitioner should have been interviewed.

ROBERT P. SMITH, Jr., Chief Judge, and McCORD and BOOTH, JJ., concur.

      . There is some uncertainty concerning the date the Commission was notified of petitioner’s confinement. Petitioner asserts that his initial interview was postponed on July 21, 1981, which indicates that the Commission was then aware of petitioner’s confinement. Counsel for the Commission, however, reports that “There is nothing in Petitioner’s Department of Corrections file to indicate where Petitioner spent the period between his date of sentence and his date of reception on October 1, 1981.” (Response, p. 1)


source: Caselaw Access Project

author: SCHEB, Chief Judge.

license: Public Domain

text:
    Kenneth Wayne ELLIOTT and Ronald Elliott, Appellants, v. STATE of Florida, Appellee.
    No. 81-223.
    District Court of Appeal of Florida, Second District.
    June 2, 1982.
    John C. Wilkins, III, Bartow, for appellants.
    Jim Smith, Atty. Gen., Tallahassee, and Samuel Robert Mandelbaum, Asst. Atty. Gen., Tampa, for appellee.
   SCHEB, Chief Judge.

Appellants Ronald and Kenneth Elliott appeal their convictions for selling a rebuilt motor vehicle without first surrendering the title certificate so that the Department of Highway Safety and Motor Vehicles could note on it that the vehicle was rebuilt. We find no merit to appellants’ contention that the state failed to establish that they intended to violate section 319.14(1), Florida Statutes (1979). Accordingly, we affirm their convictions.

Ronald Elliott was also charged with violating section 319.33(1), which prohibits making false statements in an application for a title certificate. We find that the evidence was insufficient to establish that he violated that section, and we reverse this conviction.

Earl and Betty Pitts, residents of Mississippi, were involved in an automobile accident in which their 1979 Oldsmobile was badly damaged. Their insurer, Kemper Insurance Company, declared the automobile a total loss and settled with the Pitts on that basis. The company completed a salvage information sheet on the Pitts vehicle. The vehicle was then sold in an automobile auction.

Kenneth Elliott purchased the wrecked Oldsmobile, along with several other cars, at an auction in Mississippi and transported it to his place of business in Florida. Lewis Rogers observed the car in its damaged condition and agreed to buy it if Elliott made the necessary repairs. Once the repairs were completed, Rogers took possession of the automobile and Ronald Elliott applied for a new title to be issued in Rogers’ name. The title application form required appellant to indicate whether the vehicle was new or used and to name the prior owner. Appellant indicated that the vehicle was used and that he had obtained it from Earl or Betty Pitts.

The state charged appellant with violating section 319.33(l)(e) by making a false statement in an application for a title certificate. The information stated:

In an application for a certificate of title prepared on behalf of one Lewis Rogers the said Ronald Elliott did state that he had acquired said 1979 Oldsmobile motor vehicle in a used condition from Earl or Betty Pitts, Meridian, Mississippi, knowing said statement to be false in that the said motor vehicle had actually been acquired in a wrecked or salvaged condition from the Kemper Insurance Company, Jackson, Mississippi, and/or Mississippi Salvage Disposal Company and had been rebuilt and sold to Lewis Rogers ....

Section 319.33(l)(e) provides:

It is unlawful:
To use a false or fictitious name, give a false or fictitious address, or make any false statement in any application or affidavit required under the provisions of this law or in a bill of sale or sworn statement of ownership or otherwise commit a fraud in any application.

We find that the state failed to meet its burden of proof. The information first alleged that appellant falsely stated that the automobile was acquired in a used condition. The Application for the Certificate of Title provided only two boxes to indicate the vehicle’s condition; new or used. No space was provided where the applicant could indicate that the vehicle was wrecked, salvaged, or rebuilt. Thus, the fact that appellant checked the used box did not constitute a false statement.

The information also alleged that appellant falsely stated that he acquired the automobile from Mr. or Mrs. Pitts. At trial the insurance adjuster who handled the Pitts’ claim testified that the title was never transferred from the Pitts to Kemper Insurance or to the salvage company. Instead, the Pitts signed a power of attorney permitting a Kemper manager, W. T. Blevins, Jr., to transfer the vehicle on their behalf as their attorney in fact. A Mississippi title which stated that Earl or Betty Pitts were the owners and contained an assignment of title form signed “Earl A. or Betty J. Pitts, by W. T. Blevins, Jr.” was forwarded to appellant after he purchased the vehicle from the salvage company. Thus the documents gave no notice that anyone other than Earl or Betty Pitts owned the vehicle. Since no evidence was offered at trial to establish that the insurance company or the salvage company was, in fact, the title owner of the vehicle, the state failed to prove that appellant made a false statement in the title application.

Accordingly, we vacate Ronald Elliott’s conviction for violating section 319.33(l)(e).

CAMPBELL and SCHOONOVER, JJ., concur.


author: CAMPBELL, Judge.

text:
    Robert Allen BLACKBURN, Appellant, v. STATE of Florida, Appellee.
    No. 81-2252.
    District Court of Appeal of Florida, Second District.
    June 2, 1982.
    Jerry Hill, Public Defender, and Bryan E. Hopkins, Asst. Public Defender, Bartow, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and David T. Weisbrod and Ann Paschall, Asst. Attys. Gen., Tampa, for appellee.
   CAMPBELL, Judge.

Appellant was charged by information with armed robbery. He filed a motion to suppress evidence (a nylon stocking and pistol) seized from him. The motion was denied. Thereafter, he entered a plea of no contest to the charge, specifically reserving his right to appeal the denial of his motion to suppress. It was stipulated that the issue on the motion to suppress was disposi-tive. Appellant asserts the trial court erred in denying the motion to suppress. We agree and reverse.

An employee of a convenience store testified at the motion to suppress hearing that he was robbed by two men wearing stocking masks. In particular, his description of one man was a tall man who wore blue jeans. Due to the mask he did not see the color of his hair nor did he see a car. A clerk of another convenience store in the area called the Sarasota County Sheriff’s Department to state that two men had purchased panty hose from him approximately two and one-half hours before the robbery. That employee described one man as tall with bushy brown hair, wearing blue jeans with a short sleeve blue shirt. He said that they drove away in a dark sedan. The arresting deputy states that the neighboring Venice Police Department reported the second call to him and their description of the car was an “older brownish colored Plymouth.” Later the same night he saw a man pumping gas next to a “maroon colored Plymouth” at a store four miles from the robbery. The man was wearing a black shirt and dark pants. There was another man in the car that the officer could not see clearly.

It is questionable whether the stop of appellant was constitutionally permissible under section 901.151, Florida Statutes (1981), the “stop and frisk law.” Neither appellant’s clothing nor his car fit the description given the officer. Still the officer followed and stopped appellant and his companion after appellant finished pumping gas. The deputy began a protective search without appellant’s consent. While searching for a weapon, he noticed a bulge in appellant’s shirt pocket. The deputy’s testimony is clear that as soon as he felt the bulge he knew the object was not a weapon. Nevertheless, he pulled the object out of appellant’s shirt pocket and found it to be a nylon stocking. He then placed appellant and his companion under arrest. The officers who arrived later searched the car and found a pistol.

Regardless of whether the officer had a reasonable suspicion to justify the stop of appellant it was not permissible for him to seize the stocking after he knew it was not a weapon. At the hearing, the officer admitted that his seizure of the stocking from appellant’s person was not for his protection. Such a seizure is not permissible when the officer does not reasonably believe that what he is finding is a weapon. Dunn v. State, 382 So.2d 727 (Fla.2d DCA 1980); Harris v. State, 352 So.2d 1269 (Fla.2d DCA 1977).

Since the arrest of appellant based on the illegal seizure of the stocking was invalid so also was the resulting search of the automobile. The pistol found in the car was obtained as a result of an illegal search and as “fruit of the poisonous tree” is also inadmissible. Stanley v. State, 327 So.2d 243 (Fla.2d DCA 1976).

The judgment and sentence are reversed and the case is remanded for further proceedings consistent with this opinion.

RYDER, A. C. J., and DANAHY, J., concur.


author: THOMPSON, Judge. WENTWORTH, Judge,

text:
    BUTCH’S CONCRETE and South Carolina Insurance Co., Appellants, v. Prentice HENDERSON, Appellee.
    No. AB-323.
    District Court of Appeal of Florida, First District.
    June 4, 1982.

      B. C. Pyle of Whittaker, Pyle, Stump & Webster, Orlando, for appellants.
    Irvin A. Meyers of Meyers, Mooney & Adler, Orlando, for appellee.
   THOMPSON, Judge.

The employer/carrier (E/C) appeal a workers’ compensation order which admitted into evidence, over objection, unauthenticated medical reports and hospital records and which awarded a ehange of physician, wage-loss benefits, and vocational rehabilitation. We reverse the admission into evidence, over objection, of the unauthenticated medical reports and hospital records, and the award of wage-loss benefits and rehabilitation. We affirm the change of physician.

As to rehabilitative benefits, § 440.-49(1), Florida Statutes (1979), provides that:

If such services are not voluntarily offered or accepted, the Division of Workers’ Compensation of the Department of Labor and Employment Security, upon application of the employee, employer or carrier, after affording the parties an opportunity to be heard, may refer the employee ... [for a rehabilitative report]. On receipt of such report, and after affording the parties an opportunity to be heard, the deputy commissioner may order ... [rehabilitative treatment], (emphasis supplied)

In the present case it appears that claimant has not applied to the Division of Workers’ Compensation for such rehabilitative services, nor did claimant request that the deputy award such services, and neither party to this appeal was advised or on notice that such benefits might be awarded by the deputy commissioner. Section 449.49(1) expressly requires “an opportunity to be heard” on this issue, and the award of rehabilitative services in the proceeding below was contrary to the statutory requirement. Claimant may reapply for such benefits by complying with the provisions of § 440.-49(1).

Before wage loss benefits can be awarded, the claimant must establish the existence of some degree of permanent impairment. Prior to the amendment of the workers’ compensation law in 1979, the deputy commissioner (the deputy) had a fairly wide latitude to find permanent disability or impairment based solely on the lay testimony of the claimant, on his own observations of the claimant, or on both. In 1979, in amending the law relating to permanent impairment and wage-loss benefits, the legislature clearly set out the purpose of the amendments. Section 440.15(3)(a)3., Fla. Stat. (1979) states:

In order to reduce litigation and establish more certainty and uniformity in the rating of permanent impairment, the division shall establish and use a schedule for determining the existence and degree of permanent impairment based upon medically or scientifically demonstrable findings. The schedule shall be based on generally accepted medical standards for determining impairment and may incorporate all or part of any one or more generally accepted schedules used for such purpose, such as the American Medical Association’s Guides to the Evaluation of Permanent Impairment. On August 1, 1979, and pending the adoption, by rule, of a permanent schedule, Guides to the Evaluation of Permanent Impairment, copyright 1977, 1971 by the American Medical Association, shall be the temporary schedule and shall be used for the purposes hereon, (emphasis supplied)

In respect to wage-loss benefits § 440.-15(3)(b)l., Fla.Stat. (1979) provides that each injured worker who suffers any permanent impairment determined pursuant to the schedule, may be entitled to wage-loss benefits. Although any permanent impairment is sufficient to be a basis for a wage-loss claim, not only the degree of impairment but the existence of any impairment must be “based upon medically or scientifically demonstrable findings.” § 440.-15(3)(a)3., Fla.Stat. (1979). Obviously even this amendment does not require that a medical doctor testify to a permanent disability in every instance. A claimant who has lost an arm as a result of an industrial accident has clearly suffered a demonstrable permanent impairment that a deputy can determine by his own observation of the claimant. By the same token, if the claimant cannot demonstrate some actual impairment that can be observed by the deputy, then lay testimony or observation by the deputy, standing alone, is not sufficient to establish any permanent impairment if the purpose in the language in the 1979 amendment is to be given any force and effect. Since there is no permanent impairment based upon medical or scientifically demonstrable findings in the record in this ease, we reverse the award of wage-loss benefits.

We also reverse the admission into evidence of Dr. Montes’ medical report. The medical reports are hearsay and should not be admitted over objection in the absence of a stipulation as to their admissibility. The deputy in his order found that to require the claimant to take the deposition of Dr. Montes would violate the spirit of the current workers’ compensation law which is intended to provide maximum benefits to the claimant with minimum costs. The claimant has some burden to prove his case and the cost of the deposition of a doctor is not a sufficient excuse for not taking it, particularly since that cost is paid by the E/C, not the claimant, if the claim is com-pensable.

MILLS, J., concurs.

WENTWORTH, J., dissenting and concurring in part.

WENTWORTH, Judge,

dissenting and concurring in part.

I agree that rehabilitation benefits were not properly awarded but would otherwise affirm the order appealed. Only a work search issue was specifically raised below in defense against wage loss benefits, along with general contentions that claimant was not permanently and totally disabled and all benefits due had been paid. Employer/carrier now asserts, as an additional issue on appeal, a lack of competent substantial evidence to show any permanent impairment because medical records were improperly admitted. I find no.merit in the search issue and would not reach the alleged inadmissibility of medical records because those records would be essential only if a specific impairment rating were required for affirmance of the award in this case. Claimant testified as to more than five years’ performance of the job in which he was injured, without symptomatic back limitations. Evidence of claimant’s surgery for removal of a disc as a result of his accident, and as to his physical condition following recovery from surgery, including his inability to perform certain employment for a trial period, supports the deputy’s finding of some permanent impairment as a result of the accident and surgery in the context of this case. The deputy appropriately noted at the hearing in this case:

He had surgery, removal of a disc and really the issue under the wage loss is a simple matter. Has he reached maximum medical improvement and does he have any disability. One percent would be enough. And so I don’t think that all of the issues we used to get into under the old law are really applicable to this case. I mean we have very simple issues, and I think it was the intent of the legislature to get lawyers out of Workmen’s Compensation cases, and in doing so, it had to be their obvious intent to at least make it easy for these wage loss cases to be presented since your only claim — ... Three months of wage loss. So the cost of taking the doctor’s deposition or having the doctor here to testify would be equal to the three months wage loss.... The Claimant had surgery. I’m sure he can testify to that. And that he had a disability.

Wage-loss benefits are payable when a worker suffers “any permanent impairment.” § 440.15(3)(b), Florida Statutes (1979). Under this statutory standard, no particular degree of impairment is required, and entitlement to wage-loss benefits is clearly not dependent on a specific impairment rating. The permanent impairment rating provision of § 440.25(3)(b), Florida Statutes (1979), for impairment awards is therefore not directed to the evidentiary predicate necessary to establish a claimant’s entitlement to wage-loss benefits for permanent partial impairment. While § 440.-15(3)(b), Florida Statutes (1979), establishes that the Division of Workers’ Compensation shall adopt a “schedule for determining the existence and degree of permanent impairment based upon medically or scientifically demonstrable findings,” (e.s.) the majority concedes that in appropriate circumstances the necessary medical or scientific evidence may be supplied by lay testimony. In the present case I would find claimant’s testimony sufficient to permit the deputy’s determination of the existence of some causally related permanent impairment in accordance with the schedule. The argument here and before the deputy reflects no real issue as to specific impairment standards, relating instead to alleged necessity for a physician’s numerical rating attributable to the accident in question.

I would affirm.

      . The fact of maximum medical improvement is not in controversy, nor is any question raised as to compensability or causal connection between the current industrial injury and medical benefits including hospitalization and disc surgery during temporary disability between February and October, 1980.

      . No deputy commissioner shall make a finding of a degree of permanent impairment that is greater than the greatest permanent impairment rating given the claimant by any examining or treating physician, except upon stipulation of the parties.

      . The American Medical Association Guides to the Evaluation of Permanent Impairment is the statutorily mandated temporary schedule.


author: MILLS, Judge.

text:
    Owen CALLOWAY, Jr., Petitioner, v. FLORIDA PAROLE AND PROBATION COMMISSION and Louie L. Wainwright, Respondent.
    No. AE-380.
    District Court of Appeal of Florida, First District.
    June 4, 1982.

      Owen Calloway, Jr., pro se.
    Catherine L. Dickson, Tallahassee, for respondent.
   MILLS, Judge.

Calloway appeals from a final order of the Florida Parole and Probation Commission (Commission) establishing his presumptive parole release date (PPRD). We affirm.

The Commission properly calculated Calloway’s salient factor score of two (2) based on the age of his first conviction and his prior conviction for DWI. See Florida Administrative Code Rule 23-19.04(l)(b).

Aggravation was properly applied in establishing his PPRD because Calloway committed his present offense of conviction while on probation for a previous crime. Florida Administrative Code Rule 23-19.-03(l)(b).

The offenses for which Calloway was on probation could not be used in calculating his salient factor score since adjudication of guilt was withheld. Florida Administrative Code 23-19.04(l)(a).

McCORD and SHIVERS, JJ., concur.


author: JOANOS, Judge.

text:
    Patrick KALINOSKI, Appellant, v. STATE of Florida, Appellee.
    No. AE-447.
    District Court of Appeal of Florida, First District.
    June 4, 1982.
    W. Arvel Drury of McCormick, Reid & Drury, Jasper, for appellant.
    Jim Smith, Atty. Gen., Wallace E. All-britton, Asst. Atty. Gen., Tallahassee, for appellee.
   JOANOS, Judge.

Appellant was charged with and convicted of violating Section 800.04, Florida Statutes, by knowingly committing a lewd or lascivious act in the presence of a child under the age of 14 years, without the intent to commit involuntary sexual battery. Among the questions presented on appeal is whether the evidence was sufficient to prove that the particular act was committed in the presence of the child, who was four years and ten months old at the time of the incident. No issues are raised with regard to the nature of the act or the element of appellant’s knowledge.

When the incident allegedly occurred the child and her parents were inside their automobile. Appellant was standing several feet away. The child’s mother testified that as appellant was committing the act the child was standing partially in the front seat of the automobile and leaning over looking out the window, because she wanted to see what was going on and who was yelling. The child then grabbed her mother’s shoulder “as if she wanted protection.” There was sufficient evidence from which the jury could conclude that the act was committed in the presence of a child under 14 years of age.

Likewise, no error has been shown on the other issues raised on appeal. The judgment and sentence are AFFIRMED.

LARRY G. SMITH and THOMPSON, JJ., concur.


author: THOMPSON, Judge.

text:
    DEPARTMENT OF TRANSPORTATION, DIVISION OF RISK MANAGEMENT, Appellant, v. Charlie E. FERRELL, Appellee.
    No. AG-72.
    District Court of Appeal of Florida, First District.
    June 4, 1982.
    Barry D. Graves of Ritch & Graves, Gainesville, for appellant.
    Eric Wagner of Wagner & Simmons, Oca-la, for appellee.
   THOMPSON, Judge.

The employer/carrier (E/C) appeal a workers’ compensation order, contending that the deputy commissioner (deputy) erred in finding claimant permanently totally disabled (PTD) based on a 100% diminution of wage earning capacity. We affirm.

Claimant sustained a compensable injury to his back on February 21, 1978. Approximately a year later, claimant suffered a substantial loss of vision due to a sudden onset of cataracts, a condition unrelated to the accident. Claimant was subsequently awarded temporary total disability (TTD) benefits due to his back injury. However, the award of TTD benefits was reversed since all the medical testimony indicated that the claimant had reached maximum medical improvement (MMI). Department of Transportation v. Ferrell, 393 So.2d 627 (Fla. 1st DCA 1981). Due to the conflict in the medical testimony as to the actual date of MMI, the cause was remanded to the deputy.

On remand the deputy found that claimant had reached MMI on December 28,1978 and that claimant was PTD based on a 100% diminution of wage earning capacity. The order indicates that the deputy found the date of MMI, December 28, 1978, from the deposition of Dr. Freed. However, we note that Dr. Whittaker, not Dr. Freed indicated that claimant reached MMI by December 28, 1978. Furthermore, the order indicates that the deputy made the finding of PTD from the deposition of Dr. Henderson. We note, with some disapproval, that the deposition of Dr. Henderson which related to this finding was not transcribed or filed with the Department of Labor and Employment Security, Division of Workers’ Compensation until after the date of the instant order. However, Dr. Henderson’s medical report was before the deputy at the time the order was entered. Since this report contains competent substantial evidence to support the deputy’s finding of PTD, we affirm the order.

Although claimant did not make an adequate work search, it is clear that under the circumstances a work search would have been futile. See Sizemore v. Canaveral Port Authority, 332 So.2d 23 (Fla.1976). Accordingly, since there is competent substantial evidence to support the deputy’s order, we affirm the finding of PTD based on a 100% loss of wage earning capacity.

JOANOS and WIGGINTON, JJ., concur.


author: McCORD, Judge.

text:
    John CAVALCANTE, Appellant, v. FLORIDA PAROLE AND PROBATION COMMISSION, Appellee.
    No. AI-179.
    District Court of Appeal of Florida, First District.
    June 4, 1982.
    Dewey A. F. Ries, Fort Lauderdale, for appellant.
    Malcolm S. Greenfield, Gen. Counsel, Tallahassee, for appellee.
   McCORD, Judge.

Appellant appeals the Florida Parole and Probation Commission’s revocation of his parole due to violation of Condition 8 which required that he live and remain at liberty without violating any law. The revocation was based upon two alleged crimes committed by appellant, one of which resulted in a jury finding of not guilty and the other was disposed of by a directed verdict of not guilty. We affirm.

Appellant contends the Commission violated the principles of collateral estoppel, res judicata, or double jeopardy in convicting him on a parole violation for the same charges for which a jury and court found him not guilty. The argument made by appellant was considered by the Supreme Court of Florida in Russ v. State, 313 So.2d 758 (Fla.1975), in which the court concluded that an acquittal in a criminal case does not preclude a judge from determining, within his discretion, that a parole or probation violation has occurred based on the same conduct for which the defendant was found not guilty of a criminal offense. On the basis of Russ v. State and the decisions cited therein, we affirm.

ROBERT P. SMITH, Jr., C. J., and BOOTH, J., concur.


text:
    W. Y., a child, Appellant, v. STATE of Florida, Appellee.
    No. AJ-392.
    District Court of Appeal of Florida, First District.
    June 4, 1982.
    Michael Allen, Public Defender, Glenna Joyce Reeves, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., Gregory C. Smith, Asst. Atty. Gen., for appellee.
   MILLS, Judge.

W. Y. appeals an order committing him to the care of the Department of Health and Rehabilitative Services (HRS). We reverse.

The sole error urged by W. Y. is that the trial court did not comply with Section 39.-09(3)(e), Florida Statutes (1981), by not ranking the three placement alternatives for him suggested by HRS. Instead, the order lists one option, halfway house, as all three priorities. Recently, this court held that this statute is mandatory, reversing an order listing a placement option not provided by HRS. See L. J. N. v. State, 411 So.2d 1349 (Fla. 1st DCA, 1982). The statute is mandatory when applied to the facts of this case as well.

The ranking of placement options is reversed and the cause is remanded so that the court may rank the options given it.

McCORD, J., and PEARSON, TILLMAN (Ret.), Associate Judge, concur.


text:
    R. S., a child, Appellant, v. STATE of Florida, Appellee.
    No. AJ-395.
    District Court of Appeal of Florida, First District.
    June 4, 1982.
    Michael Allen, Public Defender, Glenna Joyce Reeves, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., David P. Gauldin, Asst. Atty. Gen., for appellee.
   MILLS, Judge.

R. S. appeals an order committing him to the custody of the Department of Health and Rehabilitative Services. We affirm in part and reverse in part.

The child asserts that due process was denied when the commitment proceeding was conducted without the prior filing of a written predisposition report. The better practice is for a written report to be provided prior to the hearing. The intent of the Juvenile Justice Act, particularly Section 39.09(3), is best served by this report being submitted in writing prior to any disposition hearing. However, the facts of this case do not require reversal for failure to provide the report in writing. A predisposition report was given orally to both the court and the child’s counsel several days prior to the disposition. A written report was promptly made and filed. There is no assertion that the written and oral reports vary. There is, in fact, no assertion of prejudice to the child made to the trial court. Without some harm having been done, we affirm the action below.

The court gave one placement option instead of the ranking required by Section 39.09(3)(e), Florida Statutes (1981). This is reversed for the reasons expressed in W. Y. v. State, 414 So.2d 659 (Fla. 1st DCA 1982), opinion released this date. The cause is remanded for further proceedings.

McCORD, J., and PEARSON, TILLMAN (Ret.), Associate Judge, concur.


author:
DENNIS, Justice.
     WALTER I. LANIER, Jr., Justice Pro Tem.

text:
    STATE of Louisiana v. Russell L. ENNIS.
    No. 81-KA-2042.
    Supreme Court of Louisiana.
    May 17, 1982.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John Mamoul-ides, Dist. Atty., Abbott J. Reeves, Stephen Wimberly, William Credo, III, Asst. Dist. Attys., for plaintiff-appellee.
    C. Joseph Murray, New Orleans, for defendant-appellant.
   DENNIS, Justice.

Defendant, Russell Ennis, was convicted by a judge of receiving stolen things, La. R.S. 14:69, and sentenced to two years at hard labor. We reverse his conviction and sentence because the evidence does not warrant a finding beyond a reasonable doubt that he knew or had good reason to believe the thing, a 1976 Camaro automobile, was stolen when he received it.

La.R.S. 14:69 provides, in pertinent part: “Receiving stolen things is the intentional procuring, receiving, or concealing of anything of value which has been the subject of any robbery or theft, under circumstances which indicate that the offender knew or had good reason to believe that the thing was the subject of one of the offenses.”

Defendant concedes that the state proved he was in possession of an automobile, that the automobile had value and was the subject of a theft. He contends, however, that there was no evidence to show that he knew or had good reason to believe that the automobile had been stolen.

The state called two witnesses at defendant’s trial. The first was a deputy of the Jefferson Parish Sheriffs Office, who testified that on January 6, 1981 he observed a silver Camaro westbound on Interstate 10 with no tail lights. The car drove off the exit ramp onto Causeway Boulevard where it was stopped by the deputy. Ennis, the driver of the automobile, could not produce registration papers for the car. The Deputy could not remember whether the defendant told him that the papers were at his house or that the man who sold him the car was going to take care of the paper work. A computer check revealed the car had been stolen from Jimmy Mumphrey. The deputy advised defendant of his rights and placed him under arrest.

The state’s second witness was Jimmy Mumphrey, the owner of the stolen vehicle. He testified that he purchased the car in June of 1979 for $2,900 and that it had been stolen in December of 1980. Mumphrey recalled that the registration papers had been in the glove compartment of the car when it was taken.

At the close of the state’s case, defense counsel moved for an acquittal based on the contention that the state had failed to show that the defendant knew or had good reason to believe the car was stolen. The motion was denied.

One witness was called for the defense. Barbara Teston, the defendant’s fiancee, testified that she had been at Ennis’s house on the 29th or 30th of December, 1980 when a man who had identified himself as Jimmy Mumphrey was also there. He was driving a silver Camaro and took Ms. Teston and the defendant for a ride in the car. She testified that the Jimmy Mumphrey who had testified for the state was not the Jimmy Mumphrey she had met at her fiance’s house.

Ms. Teston further testified that on New Year’s Eve, December 31, 1980 or New Year’s Day, January 1, 1981, Ennis and the person she knew as Mumphrey discussed the sale of the Camaro while at a bar where Ms. Teston worked. According to her testimony, Ennis gave Mumphrey $1,000 cash for the car. She did not see any papers transferred, but understood when the two men left that they were going to take care of the paper work. She saw her fiance later that night but he had not received any papers as of that time.

In State v. Walker, 350 So.2d 176 (La.1977), this court held that “* * * R.S. 14:69 does not create any presumptions and the State must prove that the accused actually knew or had good reason to believe that the property had been stolen before a conviction under La., R.S. 14:69 can be obtained.” We have also held that mere possession of stolen property does not create a presumption that the person in possession of the property received it with knowledge that it was stolen by someone else. State v. Nguyen, 367 So.2d 342 (La.1979); State v. Walker, supra, at 178.

The state argues that a person who purchases a car for $1,000 without receiving ownership papers has good reason to believe the car to be stolen. The state established that the owner of the 1976 Camaro purchased it in 1979 for $2,900. The owner testified that the fiberglass in the front of the car had a crack in it when he bought it. When it was returned to him after the theft both front fenders were dented and the back of the car had been damaged. He testified that this additional damage was not present at the time it was stolen. There was no testimony regarding the condition of the car at the time of the alleged sale to the defendant. The state did not establish the value of the car at the time of the arrest of the defendant. Therefore, we are unable to conclude that the price paid by defendant was so unusually low as to give the defendant good reason to believe the car to be stolen.

A person who purchases a car without receiving ownership papers may have reason to suspect that the car was the subject of a theft. However, in order to obtain a conviction of receiving stolen things, the state must prove that the defendant knew or had good reason to believe the thing to be stolen. Mere suspicion, not rising to the level of certainty required to form a belief, is not enough. See, W. LaFave and A. Scott, Criminal Law, § 93, at 685, 686 (1972).

It is the defense position that R.S. 15:438 and Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), require a reversal of the conviction. Under the Jackson standard, the appropriate question is whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could conclude that the state proved the essential elements of the crime beyond a reasonable doubt. State v. Guillot, 389 So.2d 68 (La.1980).

Regarding circumstantial evidence, R.S. 15:438 sets forth the rule that, in order to convict, the evidence must exclude every reasonable hypothesis of innocence. Under Jackson, the evidence is viewed in the light most favorable to the prosecution and from the viewpoint of a rational trier of fact. Therefore, when we review a conviction based upon circumstantial evidence we must determine that, viewing the evidence in the light most favorable to the prosecution, a reasonable trier of fact could have concluded beyond a reasonable doubt that every reasonable hypothesis of innocence had been excluded. State v. Austin, 399 So.2d 158, 160 (La.1981).

Viewing the evidence in the light most favorable to the prosecution, we think that a rational trier of fact would have failed to conclude that beyond a reasonable doubt the defendant knew or had good reason to believe the vehicle had been stolen when he acquired it. Defendant’s fiancee testified she saw him purchase the car for $1,000. Considering that the vehicle was about five years old and damaged, this price does not necessarily indicate that the auto had been the subject of a theft. The state proved that the defendant did not have a title certificate with him when he was arrested, but the evidence fails to establish that defendant acquired the vehicle without obtaining a title certificate or a bill of sale. Even if the defendant did not obtain a title certificate at the time of sale, this in itself did not furnish good reason for him to believe the car had been stolen. The defendant purchased the car on New Year's Day, only five days before his arrest. To experience a short delay in obtaining title papers to a car does not necessarily give a person good reason to believe the vehicle has been stolen. Without additional circumstantial evidence concerning the defendant’s acquisition of the automobile, we conclude that the state’s proof of the crime is not constitutionally sufficient in this case.

Accordingly, the defendant’s conviction and sentence are reversed.

REVERSED.

LEMMON, J., concurs.

LANIER, J. Pro Tem., dissents with reasons.

WALTER I. LANIER, Jr., Justice Pro Tem.

(dissenting).

I dissent from the result reached in this case and agree with the per curiam of the trial judge that the possession of the stolen automobile by the defendant under the facts and circumstances of this case created a reasonable inference that the defendant had good reason to believe that the vehicle was stolen.

Louisiana law requires all sellers of automobiles to deliver the certificate of title endorsed and signed to the buyer of the vehicle at the time of the sale. La.R.S. 32:705; State v. Skinner, 358 So.2d 280 (La.1978). The purchaser of the automobile does not acquire a marketable title until he has obtained a certificate of title to the vehicle. La.R.S. 32:706. The purchaser of the automobile must apply for the certificate of title within five (5) days after the delivery of the vehicle. La.R.S. 32:707. Motor vehicle registration certificates or copies thereof are required to be kept in a motor vehicle at all times when it is operated upon a public highway of this State. La.R.S. 47:506(A).

When the defendant was stopped by the deputy sheriff and asked to produce his driver’s license and vehicle registration certificate, he was unable to do so, nor did he produce a certificate of title. The owner of the vehicle testified that he purchased it in June of 1979 for $2,900.00. The defense witness, Teston, testified that she observed the defendant purchase the vehicle in a bar for $1,000.00 cash on or about January 1, 1981, and that she did not observe any exchange of documents at that time. These facts and circumstances created a reasonable inference that the defendant had good reason to believe that the vehicle was stolen. The evidence presented by the State and the defense at the trial did not satisfactorily explain the defendant’s receipt and possession of the stolen vehicle. In my opinion, viewing this evidence in the light most favorable to the prosecution, a rational trier of fact could, and did, conclude that the State proved the essential elements of the crime beyond a reasonable doubt.

It has been my experience that the crime of receiving stolen things, like other crimes against property such as theft and simple burglary, by design is not committed in the presence of witnesses to avoid detection. Thus, as a practical matter, there usually is no direct evidence of guilty knowledge, such as a confession or the testimony of a chance observer, and the case must stand or fall on circumstantial evidence. If the holding in the instant case prevails in the future, it will be exceedingly difficult, if not impossible, in the absence of direct evidence, to prove guilty knowledge in a case of receiving stolen things by circumstantial evidence only.

I have analyzed this case in accordance with the standard enunciated in State v. Mathews, 375 So.2d 1165 (La.1979) and its progeny because I am only a temporary (as distinguished from ad hoc) member of this Court and feel compelled because of the nature of this appointment to comply with the jurisprudential rules established by the permanent members of this Court. In State v. Mathews, supra, a majority of this Court determined that the United States Supreme Court case of Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) required that the standard of review when considering the sufficiency of the evidence to support a criminal conviction is whether, after reviewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. For the reasons set forth herein, I feel that this holding is in error, that the view of Chief Justice Summers in his dissent in Mathews is correct, and that the permanent members of this Court should reconsider that holding.

Article 5, Section 5(C) of the Louisiana Constitution of 1974 establishes the scope of appellate review of this Court and specifically states that “In criminal matters, its appellate jurisdiction extends only to questions of law.” Thus, by constitutional mandate, this Court has no jurisdiction to review questions of fact in criminal cases. This Court has consistently held in determining its jurisdiction that where there was no evidence of an essential element of a crime, there was a question of law presented that could be reviewed, but where there was some evidence of an essential element of a crime a question of the sufficiency of the evidence was presented and this was an issue of fact over which this Court had no jurisdiction. State v. Marcal, 388 So.2d 656 (La.1980); State v. Williams, 383 So.2d 369 (La.1980); State v. Hudson, 373 So.2d 1294 (La.1979); State v. Victor, 368 So.2d 711 (La.1979); State v. Rollins, 351 So.2d 470 (La.1977); State v. Madison, 345 So.2d 485 (La.1977). This Court is the final authority in determining what is a question of law or a question of fact for purposes of establishing appellate jurisdiction under the Louisiana Constitution. If reviewing the evidence (facts) to determine if it is sufficient to establish proof of each essential element beyond a reasonable doubt is a question of law, what then would constitute a question of fact?

In explaining this constitutional limitation at the Louisiana Constitutional Convention of 1973, the chairman of the Judiciary Committee observed that “In criminal matters however the appellate jurisdiction is restricted to questions of law. This also is the present law in our Constitution and is continued without substance.” Volume VI, Records of the Louisiana Constitutional Convention of 1973: Convention Transcripts page 721 on August 15, 1973. Some of the reasons for this rule were explained by Delegate (then Justice) Tate as follows:

“Ms. Zervigon Judge Tate, you were on this committee. Did you all consider extending review of the facts to criminal cases?
“Mr. Tate That is another question. I don’t think we seriously did. I think someone proposed it. I don’t think it carried with a second. But that’s another question. I understand there is another amendment coming up on it.
“Ms. Zervigon Do you have any idea why serious consideration wasn’t given to review the facts on criminal cases?
“Mr. Tate Well, that requires an awful long answer. The reason possibly is, tradition, the fact that we inherited that law from the Anglo-Saxon which traditionally limits review in criminal cases to law. The fact that as a matter of administration of justice, many times people were afraid that, for instance, an appeal on facts in criminal cases might involve, although I don’t think it would, the district attorney being able to appeal the question of acquittal and things like that. I’m not giving you a completely square answer because it’s very complicated the question you asked why there shouldn’t be a review of facts in criminal cases. But for the administration of criminal justice, it’s generally felt that .... that has just not been extended.
“Mr. Perez Judge, isn’t it a fact that one of the reasons that you do not review the facts in criminal cases because a criminal case is always tried before a jury whereas most civil cases are tried before a judge without a jury.
“Mr. Tate That is a very good partial answer. Of course I think in misdemean- or cases, we only review law. But in the vast majority of cases that is true.”

Volume VI, Records of the Louisiana Constitutional Convention of 1973: Convention Transcripts pages 728 and 729 on August 15, 1973.

I agree that Jackson v. Virginia, supra, mandates that when a court, trial or appellate, has jurisdiction to review the sufficiency of evidence (facts) in a criminal case, the standard to be followed is that set forth in that opinion. For example, trial judges in Louisiana have jurisdiction to review the facts of a case when a motion for a new trial is made on the grounds that the verdict is contrary to the evidence (LSA-C. Cr.P. art. 851[1]) or when there is a motion for a judgment of acquittal in a trial before a judge alone. (LSA-C.Cr.P. art. 778). If the trial judge finds that insufficient evidence has been presented to satisfy the Jackson v. Virginia standard, a judgment of acquittal or an order for a new trial, as appropriate, can be entered. Hudson v. Louisiana, 450 U.S. 40, 101 S.Ct. 970, 67 L.Ed.2d 30 (1981). However, in Mathews this Court observed at page 1168 of the Southern Reporter as follows:

“Thus, in Jackson, the United States Supreme Court held that due process requirements of the federal constitution are offended by a lesser standard of review than that enunciated by it. Although the issue arose in terms of federal habeas review, the Jackson holding also applies, inferentially, to state or federal direct review, where due process would be equally offended by a lesser standard.”

I do not agree that Jackson v. Virginia mandates that state appellate courts must have jurisdiction to review facts (sufficiency of evidence as opposed to absence of evidence) in criminal cases. Federal appellate due process does not require any appellate review. United States v. MacCollom, 426 U.S. 317, 96 S.Ct. 2086, 48 L.Ed.2d 666 (1976); Estelle v. Dorrough, 420 U.S. 534, 95 S.Ct. 1173, 43 L.Ed.2d 377 (1975); Ross v. Moffitt, 417 U.S. 600, 94 S.Ct. 2437, 41 L.Ed.2d 341 (1974); Ortwein v. Schwab, 410 U.S. 656, 93 S.Ct. 1172, 35 L.Ed.2d 572 (1973); Griffin v. Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891 (1956); Rheuark v. Shaw, 628 F.2d 297 (5th Cir. 1980); Joensen v. Wainwright, 615 F.2d 1077 (5th Cir.1980); Martin v. Blackburn, 521 F.Supp. 685 (E.D.La.1981); and State v. Fletcher, 341 So.2d 340 (La.1976). As long as the appellate procedures granted by a state are indiscriminately available to all persons convicted, a state may limit appeals on its own terms. State v. Bernos, 260 La. 1108, 258 So.2d 371 (La.1972); 16A C.J.S. Constitutional Law § 594 at pages 688-691.

The specific holding of Jackson v. Virginia is found at page 2792 of the Supreme Court Reporter as follows:

“We hold that in a challenge to a state criminal conviction brought under 28 U.S.C. § 2254 — if the settled procedural prerequisites for such a claim have otherwise been satisfied — the applicant is entitled to habeas corpus relief if it is found that upon the record evidence adduced at the trial no rational trier of fact could have found proof of guilt beyond a reasonable doubt.”

Jackson v. Virginia came from a State where there is no appeal as of right from a criminal conviction. . See Jackson v. Virginia, supra, at page 2785 of the Supreme Court Reporter. Jackson was found guilty by a trial judge and took a writ to the Virginia Supreme Court which was denied. The United States Supreme Court did not comment on the constitutionality of the Virginia criminal appellate review scheme, and, obviously, made no comment about the Louisiana criminal appellate review scheme.

The history of Article 5, Section 5(C) of the Louisiana Constitution of 1974 shows that it was the intention of the delegates to the Louisiana Constitutional Convention and the people of Louisiana to limit the criminal appellate jurisdiction of this Court to questions of law as that term was understood at that time. By Act 843 of 1980 and a vote of the people of Louisiana on November 4, 1980, the policy of this State that appellate courts should not review questions of fact in criminal cases was restated when Article 5, Section 10(B) of the Constitution was amended to provide that for a court of appeal “In criminal cases its appellate jurisdiction extends only to questions of law.” This language is identical to Article 5, Section 5(C). If it is determined that appellate courts in Louisiana should have jurisdiction to review the sufficiency of evidence in criminal cases for the proper administration of justice, a constitutional amendment should be submitted to the people to achieve that goal. The meaning and effect of the above constitutional provisions should not be changed jurisprudentially by inference, but only when there is a definitive judgment from the United States Supreme Court declaring that the Louisiana Constitutional scheme for the appellate review of criminal matters fails to meet federal constitutional due process muster. If federal courts wish to review the sufficiency of the evidence (facts) of all criminal convictions in state courts, that is their prerogative.

       Judges Walter I. Lanier, Jr. of the Court of Appeal, First Circuit and Fred S. Bowes and Nestor L. Currault, Jr. of the Court of Appeal, Fifth Circuit, participated in this decision as Associate Justices pro tempore, joined by Associate Justices Calogero, Dennis, Blanche and Lemmon.

      . As a practical matter, temporary members cannot effect a change in jurisprudence. We are only appointed for the original hearing and not the rehearing. Thus, if temporary members, in conjunction with permanent members, change a rule on original hearing, the prevailing majority of permanent members could reinstate the rule on rehearing.


author: DENNIS, Justice. MARCUS, Justice

text:
    STATE of Louisiana v. James WIMBERLY, Jr.
    No. 81-K-2889.
    Supreme Court of Louisiana.
    May 17, 1982.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Leonard Knapp, Dist. Atty., F. Wayne Frey, Eugene Bouquet, Asst. Dist. Attys., for plaintiff-relator.
    Frank T. Salter, Jr. and Steven W. Hale, Lake Charles, for defendant-respondent.
   DENNIS, Justice.

Defendant, James Wimberly, pleaded guilty on October 26, 1981 to five counts of distribution of a controlled dangerous substance, La.R.S. 40:966(A)(1), 40:967(A)(1), and two counts of possession of a controlled dangerous substance with intent to distribute, La.R.S. 40:966(A)(1), 40:969(A)(1). Immediately, the district court imposed suspended sentences of three years at hard labor concurrently on each count, and placed him on supervised probation for three years, subject to the special condition that he serve 120 days in parish jail. In connection with one of the possession with intent to distribute offenses, the court also fined the defendant $3,500. The trial court denied the state’s motion to stay the sentence filed on the following day and ordered the defendant to be taken immediately into custody to begin serving the 120 days in parish jail on October 30, 1981.

In response to the state’s application, we granted a writ to review the district court’s action. The state contends that the sentences should be set aside because the district court (1) did not state for the record the considerations taken into account and the factual basis therefor in imposing sentence as required by La.C.Cr.P. art. 894.-1(1); (2) did not seek a presentence investigation or other input from the state prior to sentencing; (3) imposed too lenient a sentence; and (4) contravened La.C.Cr.P. art. 893 by suspending the sentence for a conviction which was not the offender’s first conviction.

APPELLATE REVIEW FOR EXCESSIVENESS

Article 1, Section 20, La. Constitution of 1974 prohibits the imposition by law of excessive punishment. In accordance therewith, in State v. Sepulvado, 367 So.2d 762 (La.1979), we held that “the imposition of a sentence, although within the statutory limit, may violate a defendant’s constitutional rights against excessive punishment that is enforceable by this court on appellate review of his conviction.” 367 So.2d 767; State v. Cox, 369 So.2d 118 (La.1979),

With respect to the appropriate standards for that review, we further stated 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 exces-siveness, 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.” 367 So.2d 769.

RELATIONSHIP OF ARTICLE 894.1 TO SENTENCE REVIEW

La.C.Cr.P. art. 894.1 (1977) sets forth three factors which justify a sentence imposing imprisonment, and eleven other factors which tend to indicate suspension of sentence or probation as appropriate. The statute provides that the latter, “while not controlling the discretion of the court, shall be accorded weight” by the trial court in its sentencing decision. The enactment concludes that the trial court “shall state for the record the considerations taken into account and the factual basis therefor in imposing sentence.” State v. Cox, supra, at 121.

Even without formal objection at the time, where the trial judge imposes a sentence without adequate compliance with the mandatory requirement of La.C.Cr.P. art. 894.1, that he state the considerations and the factual basis for his sentence, this court may vacate a sentence and remand for re-sentencing, when the reasons for a sentence that is apparently severe or arbitrary in relation to the particular offender and the actual offense committed do not appear in the record. State v. Robicheaux, 412 So.2d 313 (La.1982); State v. Cox, supra. State v. Jackson, 360 So.2d 842 (La.1978); State v. Scarborough, 359 So.2d 982 (La.1978); State v. Sepulvado, 359 So.2d 137 (La.1978). See also State v. Gibson, 362 So.2d 769 (La.1978).

APPELLATE REVIEW FOR LENIENCY

The Louisiana Constitution of 1974 does not specifically authorize this court to review, modify or vacate a sentence because of leniency. Arguably, we could substitute our judgment for that of a trial judge under our supervisory jurisdiction even though the sentence he has imposed is fully consistent with the constitution and the law. The constitutional grant of supervisory authority to this court is plenary, unfettered by jurisdictional requirements, and exercisable at the complete discretion of the court. La.Const. of 1974, Art. 5, § 5(A); Loeb v. Collier, 131 La. 377, 59 So. 816 (1912); State ex rel. Union Sawmill Co. v. Summit Lumber Co., et al., 117 La. 643, 42 So. 195 (1906); Hargrave, The Judiciary Article of the Louisiana Constitution of 1974, 37 La.L.Rev. 765 (1977); Tate, Supervisory Powers of the Louisiana Courts of Appeal, 38 Tul.L.Rev. 429 (1964); Comment, Supervisory Powers of the Supreme Court of Louisiana over Inferior Courts, 34 Tul.L.Rev. 165 (1959). In practice, however, certain limitations upon the use of this power are recognized by this court out of respect for the independence of other courts in the determination of questions confided to their judicial discretion, and to avoid usurping merely appellate jurisdiction not conferred upon us by the constitution. Tate, supra; Comment, supra. We have generally restricted the use of supervisory jurisdiction to those cases “where there is a clear usurpation of power not confided by law, or a refusal to perform some duty plainly imposed by law, and which [the lower courts] have no discretion to refuse, and when there is an entire absence of other adequate remedy.” State ex rel. City of New Orleans v. The Judge of the Sixth District Court, 32 La.Ann. 549 (1880). In order for us to set aside a constitutionally and statutorily permissible sentence, therefore, the trial court’s action must clearly fall within one of these recognized exceptional categories.

This is not such a case. The transcript of the proceedings indicates that the defendant appeared in court on the morning of his trial date and proffered pleas of guilty. The assistant district attorney dismissed another pending charge against defendant and announced to the court that the state would accept his pleas without a recommendation as to sentence. The defendant contends that the sentence had been agreed upon between the state, the court and the defendant, but the record is silent on this issue. The record shows, however, that the defendant had not previously been convicted of a felony,.although he had pleaded guilty to a misdemeanor for possession of marijuana seven years before; and that the state did not disclose any additional aggravating circumstances to the judge before sentencing. Thereupon, the trial court fined the defendant $3,500 and imposed a concurrent suspended sentence of three years at hard labor on each count, conditioned upon his actually serving a 120-day jail term. At the time of sentencing, neither the state nor the defendant requested that the judge state the facts and reasons supporting the sentences or called his omission of this duty to his attention.

We cannot say on the evidence presented for our review that the trial judge clearly misused his discretion, refused to perform his duty, or usurped power not confided by law. We do not know the circumstances of the crime or the facts taken into consideration by him in deciding upon the sentences. In the absence of a record which clearly demonstrates to the contrary, we will presume that a judicial officer properly exercised his sentencing discretion.

The trial judge failed to perform his legal duty to articulate the reasons for his sentence, but there is other adequate remedy for this dereliction. A judge is required by law to state for the record the considerations taken into account and the factual basis therefor in imposing sentence. La.C.Cr.P. art. 894.1. A judge should respect and comply with the law and should conduct himself at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary. Louisiana Code of Judicial Conduct, Canon 2. His judicial duties include all the duties of his office prescribed by law. Id. Canon 3. A judge should be faithful to the law and maintain professional competence in it. Id. Canon 3(A)(1). The Judiciary Commission is authorized upon receiving a complaint, not obviously unfounded or frivolous, alleging facts indicating that a judge is guilty of willful misconduct relating to his official duty, or willful and persistent failure to perform his duty, to investigate and determine whether there is good cause for this court to discipline a judge. La. Sup.Ct. Rule 23. On recommendation of the Judiciary Commission, this court may censure, suspend with or without salary, remove from office, or retire involuntarily a judge for willful misconduct relating to his official duty or willful and persistent failure to perform his duty. La.Const.1974, Art. 5, § 25. In short, the disciplinary proceedings provide adequate remedy for a judge’s willful refusal or persistent failure to comply with Article 894.1(C).

In accordance with our well settled supervisory jurisdiction procedure, we will not interfere with the trial judge’s exercise of discretion in this matter. Except for the other issues presented in this case, this writ would have been improvidently granted.

PRESENTENCE INVESTIGATION

The state contends that the trial court erred in not ordering a pre-sentence investigation or allowing other “input” from the state before imposing sentence. These contentions are without merit. The ordering of a presentence investigation lies within the discretion of the trial court under La.C.Cr.P. art. 875(A)(1). State v. Bell, 377 So.2d 275 (La.1979). The assistant district attorney informed the court before the defendant pleaded guilty that the state would make no sentencing recommendation. Moreover, neither the state nor the defendant requested the court to order a pre-sen-tence investigation. Therefore, we cannot say that the trial judge misused his discretion by not ordering a presentence investigation.

APPELLATE REVIEW OF AN ALLEGED ILLEGAL SENTENCE

The state may present any contention of illegality of a sentence to the trial court, with the trial court’s determination being reviewable by supervisory writs to this court. State v. Speed, 335 So.2d 28 (La.1976). We will proceed to consider the state’s arguments that the sentences in this case are illegal because the trial judge (1) shirked his statutory duty to “state for the record the considerations taken into account and the factual basis therefor in imposing sentence,” La.C.Cr.P. art. 894.1 and (2) ignored the statutory injunction that he may suspend a sentence “for the first conviction only.” La.C.Cr.P. art. 893.

1. Compliance with Article 894.1 is not essential to the legality of a sentence

As we have indicated, a trial judge’s willful refusal to perform his statutory duty to state basic facts and reasons for a sentence may be sufficient cause to invoke this court’s supervisory jurisdiction. Also, either a willful refusal or a willful and persistent failure to perform this official duty is just reason for disciplinary action against a judge. The trial judge’s failure to comply with La.C.Cr.P. art. 894.1, however, does not render the sentence invalid. Article 894.1 itself does not provide any sanction for a judge’s non-compliance. This court adopted the sentencing criteria of Article 894.1(A) and (B) as appropriate criteria by which to measure whether a sentence within statutory limits is nevertheless constitutionally excessive. State v. Sepulvado, supra. We have not as yet acted under our supervisory, administrative or rule making powers to require that sentencing judges state basic facts and reasons in every case. In those cases in which we have vacated the sentence and remanded the case for resen-tencing in full, recorded compliance with Article 894.1, our action was not prompted simply by the sentencing judge’s failure to give his reasons for the penalty imposed. Rather, it was because, based on the inadequate record presented to us, there appeared to be a substantial possibility that the defendant’s complaints of an excessive sentence had merit. In each case, pursuant to our duty to uphold the constitution, which expressly prohibits the imposition by law of excessive punishment, we vacated the sentence and remanded the case for resentencing on an adequate record, including strict compliance with Article 894.1.

Our decision in such a case represents a finding of a substantial possibility that the sentence is excessive and not a final judgment that it is invalid. The same sentence will be upheld on a second appeal if the judge’s statement of basic facts and reasons demonstrates that the sentence is not excessive under the circumstances of the particular case. Perhaps the same result could be reached in many instances by simply ordering the sentencing judge to file his findings and reasons in this court. However, we think that remanding for a new sentence is a better remedy for the possible violation of a vested legal right. The trial judge is not required to become an advocate for his original position or to go through the laborious process of reconstructing his findings and thoughts at the time of original sentencing. He is free to impose a different sentence based on additional information if he chooses.

The state’s contention that the sentences in this case are invalid because of non-compliance with Article 894.1 are therefore without merit.

2. The suspended sentences are legal

The sentences meted out by the trial court in this case were legal because La.C.Cr.P. art. 893 does not restrict a judge’s discretion to impose a suspended sentence unless the crime resulting in his sentence was committed after his first conviction.

Article 893, in pertinent part, provides that, after a defendant has been convicted of a non-capital felony, a sentencing judge “may suspend for the first conviction only the imposition or execution of any sentence * * *.” It is undisputed that the defendant had not been convicted of a felony before October 26, 1981. On that morning, the trial court in one brief, uninterrupted proceeding, accepted the defendant’s guilty pleas and imposed the sentences. Although there were multiple charges, the pleas were taken contemporaneously and the sentences were all imposed at the same time. In fact, essentially one guilty plea was entered and one sentence imposed with respect to all charges. The concurrent three year suspended sentences were identical except that a fine of $3,500 was levied in connection with one charge.

From the record presented, we cannot deduce that any one of the defendant’s convictions preceded the other. Even if we could, we do not think it is the legislative aim of Article 893 to base probation eligibility solely on such nice temporal distinctions. Rather our examination of Article 893 in comparison with other statutes with similar objectives indicates that the crucial inquiry is whether a defendant has been convicted of a felony before he committed the offense resulting in the sentence under consideration.

Article 893 shares characteristics and objectives with the multiple offender statute, La.R.S. 15:529.1, and various repeated offense statutes. E.g., La.R.S. 14:67 (theft); 14:99 (reckless motor vehicle operation); 40:966 (marijuana possession). The common legislative aim of such statutes is to serve as a warning to first offenders, to afford them an opportunity to reform and to protect society by deterring the commission of future crimes. State v. Neal, 347 So.2d 1139 (La.1977); State v. George, 218 La. 18, 48 So.2d 265 (1950). Annotation, 24 A.L.R.2d 1247 (1952). Each statute is designed to accomplish these objects, at least in part, by limiting the judge’s sentencing discretion after a first conviction and by erecting a threat of enhanced punishment for subsequent convictions. Likewise, upon a defendant’s conviction for a second felony offense, Article 893 operates to divest the sentencing judge of his discretion to suspend the defendant’s sentence and place him on probation.

The consistent application of our multiple offender statute and our repeated offense statutes over the years has been that prior convictions, in order to be available for imposition of a greater punishment as a subsequent offender, must precede the commission of the principal offense, that is, the latest prosecution in point of time. Indeed, this is the greatly preponderant interpretation of similar statutes throughout the nation, regardless of the phraseology of the statute (or whether it specifies that the earlier conviction(s) must precede the latest offense), whenever enhanced penalties are provided for a subsequent offense, whether with reference to multiple offender statutes or to other statutes creating a greater degree of criminal liability for a repeater offense. State v. Neal, supra, at 1141, 24 A.L.R. 1247.

In fact, the multiple offender statute was amended in 1956 to avoid a contrary interpretation by this court. See State v. Williams, 226 La. 862, 77 So.2d 515 (1955); Act No. 312 of 1956. The multiple offender statute has ever since provided “that the offender shall be deemed a second offender only if the crime resulting in the second conviction shall have been committed after his first conviction.” La.R.S. 15:529.1(B).

The only deviation from the general rule seems to be our DWI statute which was amended in 1978 to provide that “[o]n a second conviction, regardless of whether the second offense occurred before or after the first conviction, the offender shall be” given enhanced punishment. La.R.S. 14:98. The exception proves the general rule that, unless otherwise expressly provided, the offender shall be deemed a second offender only if the crime resulting in the second conviction shall have been committed after his first conviction.

One practical reason for the rule is that, if a defendant’s status as a second offender was not determined as of the date that he committed the second felony but the date he was found guilty of the second offense, or the date he pleaded guilty as a second offender, or the date he was sentenced as such, it would be within the power of district attorneys “by delaying the filing of the charges and prosecution of the case, to fix the accused’s status as a second offender at practically any time he desired.” State v. Dreaux, 205 La. 387, 17 So.2d 559, 560 (1944). This demonstrates that it is the defendant’s own act in violation of a statute making it a felony that establishes his status at that time as a second offender “and not the uncertain date left largely in the discretion of the district attorney ... when he will be charged, tried, and sentenced for the commission of the crime.” Id. at 560-561.

Under Article 893, a sentencing judge is never required to suspend a sentence based on a felony conviction. If the defendant is a first offender, however, he is authorized to exercise his discretion “in the best interest of the public and of the defendant” in deciding whether to suspend the sentence and place the defendant on supervised probation. Art. 893. The general rule is that a defendant is a first offender until he has proved incorrigible after a previous conviction. See La.R.S. 15:529.1; State v. Neal, supra. As a threshold condition to the exercise of broad judicial discretion which may lead to suspension of sentence and probation, whether the defendant has demonstrated such incorrigibility seems more relevant than whether a defendant faces more than a single charge in his first prosecution. The latter eventuality may depend entirely on fortuitous circumstances or the prosecutor’s discretion. Consonant with an absence of any expression of a legislative intention to vary the general rule, and with the general purpose of suspended sentences and probation, the most reasonable legislative intent to ascribe to Article 893’s provision that a defendant is eligible for a suspended sentence for his “first conviction only,” is that a conviction shall be deemed a defendant’s first conviction for sentencing purposes unless the crime upon which it is based occurred after a previous felony conviction.

We conclude, therefore, that the sentences imposed by the trial judge in this case were legal and permissible. The sentences are affirmed.

AFFIRMED.

WATSON, J., concurs in the result.

MARCUS, J., dissents and assigns reasons.

LEMMON, J., dissents and will assign reasons.

MARCUS, Justice

(dissenting).

La.Code Crim.P. art. 893 provides that the court after defendant has been convicted of a non-capital felony “may suspend for the first conviction only the imposition or execution of any sentence, where suspension is allowed under the law” and place defendant on probation. Defendant pled guilty to five counts of distribution and two counts of possession with intent to distribute on the same day. All convictions were for felony offenses. Each distribution offense occurred on a separate date. The two possession offenses occurred on the same day. The statute permits the court to suspend the sentence for the “first conviction only.” It means what it says. Hence, the trial judge could suspend the sentence for the first felony conviction only, not for the other six. Accordingly, the sentences for these latter offenses are illegal. I respectfully dissent. Thus, I do not reach the issue of whether this court may review a sentence for leniency.

      . As we noted in State v. Talbot, 408 So.2d 861 (La.1981) (On Rehearing), three of the most important reasons for deferring to the trial judge’s exercise of discretion are: his observation of the witnesses, his superior opportunity to get “the feel of the case,” and the impracticability of framing a rule of decision where many disparate factors must be weighed. The trial judge’s decision in arriving at a particular sentence involves all of these considerations. The factors listed in Article 894.1 indicate the complex balancing process behind a proper sentencing decision and the trial judge’s ability to get the feel of the case is important to the final decision.


author:
BLANCHE, Justice.
     MARCUS, Justice DUFRESNE, Justice pro tempore

text:
    STATE of Louisiana v. Eddie LANDRY.
    No. 81-KA-2095.
    Supreme Court of Louisiana.
    May 17, 1982.
    Dissenting Opinion Aug. 17,1982.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John M. Mam-oulides, Dist. Atty., Stephen Wimberly, Abbott J. Reeves, Asst. Dist. Attys., for plaintiff-appellee.
    Louis A. Heyd, Jr., New Orleans, for defendant-appellant.
   BLANCHE, Justice.

Defendant was charged by bill of information with armed robbery. After a motion to suppress evidence was denied, defendant was tried and found guilty as charged by a twelve member jury and subsequently sentenced to fifty-five years imprisonment at hard labor. On appeal, defendant urges three assignments of error. The first assignment merits reversal; therefore, we need not consider the other two.

On August 1,1979 an armed robbery was committed by two men at All American Jeans in Jefferson Parish. After shopping in the store for 15 to 20 minutes, the men proceeded to the cash register, presumably to pay for the pants they had selected. Subsequent events reve&led that this was not their purpose for, upon reaching the register, the defendant pulled a gun from his shoulder bag, held it on the sales clerk and the cashier, and ordered the cashier to put the money in the register into a paper bag. Still unsatisfied, they demanded to know if there was a safe and, upon being informed there was not one, they took the bag of money and fled.

The circumstances surrounding' defendant’s arrest are found in our opinion in State v. Landry, 393 So.2d 713 (La.1981). We quote from the opinion as follows:

Defendant was initially approached by an officer in an unmarked car as he was walking down the shoulder of a road. The officer testified that defendant was not violating any law or engaging in any criminal activity at that time, but that defendant appeared to resemble the description of a suspect who was wanted for theft in another parish. When the officer, dressed in plain clothes, stopped his car on the shoulder, defendant apparently believed that he was being offered a ride, and approached the side of the vehicle. The officer identified himself and ordered defendant to the rear of the car. Defendant was carrying a shoulder bag, which the officer removed and placed behind him; the defendant was then frisked. Finding no weapons, the officer unzipped the bag, and discovered a pistol. He placed defendant under arrest. (Presumably, the search of the bag also revealed contraband).

In that opinion, we held that cocaine found in the shoulder bag should have been suppressed because the search of the bag without a warrant could not be justified as an incident of defendant’s apprehension (stop and frisk). At the time the bag was searched, it was out of reach of the defendant, the officer had already discovered the defendant was unarmed, and defendant remained in the “frisk” position at the rear of the car. After finding cocaine and a weapon in the shoulder bag, defendant was arrested and taken to the stationhouse where he was relieved of a gold chain with a Pisces medallion he wore along with a gold earring from his left ear. He was also photographed and, the following day a set of photographs, including that of defendant, was shown to the sales clerk at All American Jeans. She positively identified defendant. At trial, she made an in-court identification of defendant and, to put the “icing on the cake”, the shoulder bag defendant carried, the medallion and earring defendant wore at the time of the robbery, and defendant’s photograph were also introduced in evidence and identified.

At the time of defendant’s initial stop and frisk, no probable cause existed to arrest defendant and none developed until after his unlawful search. For this reason, defendant argues that, but for the unlawful search and subsequent illegal arrest, his photograph would not have been taken and shown to the victim, nor would his personal belongings have been identified and offered in evidence. Thus, defendant argues that all of this evidence should be suppressed as “fruit of the poisonous tree”, i.e. the defendant’s unlawful arrest, Brown v. Illinois, 422 U.S. 590, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975). It is a fact that defendant’s arrest was predicated on the unconstitutional search of his handbag without a warrant and that his photograph, and other items of evidence subsequently taken from him, were material to the issue of his guilt or innocence. It is also a foregone conclusion that any evidence obtained as a result of an unconstitutional and unlawful arrest must be excluded at trial unless it falls within one of the exceptions, because it is considered as “fruit of the poisonous tree”. Brown v. Illinois, supra; Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963); State v. Phillips, 347 So.2d 206 (La.1977). Wong Sun, supra, reminded us that “the exclusionary provision extends as well to the indirect as to the direct products of such invasions.” The photographs taken at the stationhouse are included in the expanse of this rule.

There are three exceptions recognized to the general rule that evidence illegally acquired shall not be used at all. United States v. Crews, 445 U.S. 463, 100 S.Ct. 1244, 63 L.Ed.2d 537 (1980); Silverthorne Lumber Co. v. United States, 251 U.S. 385, 40 S.Ct. 182, 64 L.Ed. 319 (1920). None of these exceptions are applicable to the physical effects taken from the defendant and, indeed, the state does not claim that they are — it lamely argues that they were in “plain view”. Surely they were, but a prerequisite to the application of that exception to the warrant requirement is that it be immediately apparent without close inspection that the items seized are evidence or contraband. State v. Fearn, 345 So.2d 468 (La.1977). The state did not and could not have made such a showing. Consideration of these principles would have required the trial judge to suppress the gold chain with the Pisces medallion, the gold earring, the shoulder bag and the photographs which were taken after the arrest when he was “booked” into the sta-tionhouse.

Because there was other independent evidence which proved that defendant was the perpetrator of the armed robbery, the crucial issue is whether the admission of the wrongfully seized evidence was harmless error.

The independent evidence was the strong, untainted, in-court identification of the defendant as the perpetrator of the crime. The victim identified defendant and stated, “I was very aware of what this guy looked like. I’m very observant. I’ve been doing this kind of work for three years, and I’m very observant to these people that walk in.” When asked if she had any doubt, she responded, “I have no doubt at all. I remember his face. I remember his eyes, his nose, his mouth. I remember everything.” The sales clerk observed the defendant for twenty minutes prior to the robbery and stated that, after he pulled the gun, she kept staring at his face because she wanted to remember what he looked like. She gave the police a description of the defendant immediately after the robbery, and was able to furnish them with a sketch because she was a trained portrait artist.

At this point, it would seem that the prosecution should have been satisfied with the strength of the state’s proof; however, the unlawfully seized evidence was then introduced. When the medallion was introduced, the the victim stated: “This is the Pisces necklace that he had hanging in [sic] his neck. I remember it so well because he didn’t have a shirt on and I’m Pisces and it just kind of stuck on my mind.” She also identified the shoulder bag and earring as those worn by defendant during the robbery, and indicated his photograph as the one she had chosen in an out-of-court photographic lineup. She stated she had positively selected defendant’s picture at that time and proceeded to choose it once again out of the stack.

As noted above, the seizure of the foregoing items of evidence was illegal and prohibited under both the federal and state constitutions; therefore, the protections of each must be applied to determine if the error was harmless. In deciding whether an error involving the denial of a federal constitutional right can be held harmless in a state criminal case, the reviewing court must apply federal law rather than state law. Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). Although the United States Supreme Court has declared that a federal standard must be applied when a state has failed to accord federal constitutionally guaranteed rights, it has not specified which standard suggested by its opinions must be applied. However, in State v. Gibson, 391 So.2d 421 (La.1981), we adopted the standard used in Chapman v. California, supra, because it is the standard most compatible with this Court’s view of its own criminal appellate jurisdiction. The Chapman test stated that, in order to find the error harmless, we must determine “whether there is reasonable possibility the evidence complained of might have contributed to the conviction” and be able to declare a belief that [the error] was harmless beyond a reasonable doubt. The approach used in Chapman is preferable to the “overwhelming evidence” test because, focusing on the incriminating quality of the tainted evidence is less intrusive on the jury’s function and it is more consistent with the notion that all accused persons are entitled to a fair trial, even if guilty. State v. Gibson, supra.

In Gibson, we found that admission of the illegally seized evidence did not mandate a reversal because it was of limited value in connecting Gibson with the crime. The evidence in question in that case was an ordinary black leather jacket. At the trial, neither witness had been asked to explain how she could tell it was the same jacket worn by the defendant and each reference was extremely brief and devoid of any evi-dentiary facts.

In our view, the evidence complained of here was not merely a brief reference to a nondistinctive item of inadmissible evidence, but an extensive identification of unusual and personal objects which irrevocably established defendant as the robber. This Court cannot find the error was harmless just because there is other independent evidence of defendant’s guilt because Chapman requires us to focus on the incriminating quality of the tainted evidence rather than the extent of the untainted evidence. Therefore, after reviewing the impact of the error, we feel there is a reasonable possibility the erroneously admitted evidence contributed to the conviction.

The state’s harmless error provision is applicable because the seizure of the evidence also violated the Louisiana Constitution. C.Cr.P. art. 921 provides as follows:

A judgment or ruling shall not be reversed by an appellate court because of any error, defect, irregularity or variance which does not affect substantial rights of the accused.

The defendant’s right to suppress evidence obtained pursuant to an unlawful arrest is unquestionably a substantial one. Although the considerations applied under Chapman are not necessarily dispositive of the effect under state law of the introduction of this evidence, they do provide helpful guidelines. State v. Gibson, supra. Because we feel there was a reasonable possibility the evidence complained of contributed to defendant’s conviction, we find its admission did affect substantial rights of the accused.

For the reasons set forth above, defendant’s conviction is reversed and the case is remanded for a new trial in accordance with law.

MARCUS, J., dissents and assigns reasons.
BOWES, J., ad hoc, dissents and will assign reasons.
DUFRESNE, J., ad hoc, dissents and assigns reasons.

MARCUS, Justice

(dissenting).

In view of the strong, independent and untainted identification of defendant by the victim, I consider the introduction of the physical evidence illegally seized was harmless. I respectfully dissent.

DUFRESNE, Justice pro tempore

(dissenting).

I agree that the evidence obtained as a result of an unconstitutional and unlawful arrest must be excluded at trial. However, the victim made a strong, untainted in-court identification of the defendant as the perpetrator of the crime. Accordingly, I find the admission of the illegally seized evidence was harmless error and does not mandate a reversal.

Therefore, I respectfully dissent.

       Judges Fred S. Bowes, Nestor L. Currault, Jr., and Edward A. Dufresne, of the Court of Appeal, Fifth Circuit, participated in this decision as Associate Justices Pro Tempore, joined by Chief Justice Dixon and Associate Justices Marcus, Blanche and Watson.

      . This evidence was obtained in violation of Louisiana Constitution, Art. I, Sec. 5.


author: PHILIP C. CIACCIO, Justice Pro Tern.

text:
    STATE of Louisiana v. Alex LATHERS.
    No. 81-KA-2961.
    Supreme Court of Louisiana.
    May 17, 1982.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ossie Brown, Dist. Atty., Kay Kirkpatrick, Bob Hester, Asst. Dist. Attys., for plaintiff-appellee.
    Jeff Calmes and David Randall Buckley, Public Defender, Baton Rouge, for defendant-appellant.
   PHILIP C. CIACCIO, Justice Pro Tern.

Defendant, Alex Lathers, was indicted for the crime of aggravated rape, R.S. 14:42. He was convicted, by a twelve man jury, of forcible rape and sentenced to forty years at hard labor, R.S. 14:42.1. Defendant appeals his conviction and sentence on the basis of one assignment of error.

On July 10, 1980 at approximately 2:00 A.M., Pamela Edwards was driving a pickup truck through Scotlandville, on her way home to St. Francisville, after visiting her sister and brother-in-law who were staying at the Jay Motel in East Baton Rouge Parish. Miss Edwards stopped at a red light at the intersection of Highway 61 and Louisiana 19. At that point Alex Lathers, the defendant, entered the truck through an unlocked passenger-side door. After pointing, what the victim thought to be a gun, at her, the defendant forced her to drive to a secluded area. Miss Edwards jumped out of the truck and attempted to escape. She was choked by the defendant and then raped. After the attack, the victim managed to escape-by driving away in her truck. As she drove away from the site of the assault she heard what sounded like gun shots. Miss Edwards drove to the Jay Motel where she told her sister of the incident and then reported the rape to the police. The victim accompanied the police to the scene of the attack and she gave them a description of the defendant, who was arrested shortly thereafter.

On appeal, the defendant contends that the trial judge erred in imposing an unconstitutionally excessive sentence. La. Const. Art. 1, Section 20.

The statutorily prescribed penalty for forcible rape is imprisonment at hard labor for not less than two nor more than forty years. R.S. 14:42.1.

In order to determine whether a particular sentence is excessive, the reviewing court must decide whether it is so disproportionate to the severity of the crime as to shock the senses of justice. State v. Bonanno, 384 So.2d 355 (La.1980). In reaching this determination, the Supreme Court is aided by the judge’s reasons for imposition of sentence. State v. Stegall, 377 So.2d 103 (La.1979). The court must consider the sentencing guidelines before imposing a sentence of imprisonment. C.Cr.P. Art. 894.1, State v. Williams, 397 So.2d 1287 (La.1981). The law mandates that the trial court state for the record the considerations and factual basis for the sentence imposed. C.Cr.P. Art. 894.1. State v. Forshee, 395 So.2d 742 (La.1981), State v. Jones, 386 So.2d 85 (La.1980), on appeal from remand 398 So.2d 1049 (La.1981). The sentence imposed by the court must be individualized, that is, adapted to the offender as well as to the offense. State v. Wright, 384 So.2d 399 (La.1980); State v. Little, 377 So.2d 332 (La.1979). The trial court need not articulate every aggravating and mitigating circumstance, but the record must reflect that the court adequately considered the sentencing guidelines in particularizing the sentence to the defendant. See: State v. Gray, 404 So.2d 1215 (La.1982). State v. Franks, 373 So.2d 1307 (La.1979), on appeal from remand, 391 So.2d 1133 (La.1980), cert. den., 450 U.S. 983, 101 S.Ct. 1520, 67 L.Ed.2d 818. This Court will vacate a sentence and remand for resentencing in those instances in which the sentence is disproportionately severe when viewed in light of the offense committed and the reasons for such sentence do not appear in the record. State v. Russell, 397 So.2d 1319 (La.1981).

The record indicates that the trial judge was aided by a pre-sentence investigation report. The report contains certain factual information which would be mitigating in the defendant’s favor. That is, the report states that the defendant was twenty-two years of age at the time of the offense; he had two prior arrests and no convictions; he had no prior felony offender status; and he had a steady employment history. The record does not indicate that these factors were considered nor weighed in sentencing the defendant. The essence of the judge’s ruling focused on the despicable nature of this particular offense, with little or no reference to the Louisiana statutory guidelines for sentencing and with little or no reference to the mitigating factors of this case. C.Cr.P. Art. 894.1 and C.Cr.P. Art. 905.5. Since we are unable to review the excessiveness of defendant’s sentence because it was imposed without proper compliance with the statutory guidelines for sentencing, we must set the sentence aside and remand for resentencing.

Accordingly, the defendant’s conviction is affirmed. The sentence is vacated and the case is remanded to the district court for re-sentencing, with a full statement of reasons for the particular sentence imposed.

CONVICTION AFFIRMED. SENTENCE VACATED AND CASE REMANDED FOR FURTHER PROCEEDINGS.

       Judge H. Charles Gaudin of the Court of Appeal, Fifth Circuit and Judges Israel M. Augustine, Jr. and Philip C. Ciaccio of the Court of Appeal, Fourth Circuit, participated in this de-cisión as Associate Justices pro tempore, joined by Associate Justices Calogero, Dennis, Watson, and Lemmon.