author:
WATKINS, Associate Justice Ad Hoc . DIXON, C. J., WATSON, Justice,
      LEMMON, Justice, CALOGERO, Justice.
     DIXON, Chief Justice MARCUS, Justice

text:
    STATE of Louisiana v. Kenneth LeCOMPTE, et al. STATE of Louisiana v. Deborah EWING and Luke Dubaz.
    Nos. 80-K-2213, 80-KA-2271.
    Supreme Court of Louisiana.
    May 18, 1981.
    On Rehearing Nov. 16, 1981.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Robert Long, Michael Fanning and Louise S. Korns, Asst. Dist. Attys., for plaintiff-appellant.
    Sheryl L. Jarvits, Joseph Beeler, James J. Hogan, Miami, Fla., Frank G. DeSalvo, Robert Zibilich, Edward M. Baldwin, New Orleans, William Moran, Miami, Fla., for Kenneth LeCompte et al.
    William H. Slaughter, III, Noble, Slaughter, Clayton & Lorenz, New Orleans, for Deborah Ewing and Luke Dubaz.
   WATKINS, Associate Justice Ad Hoc .

These are consolidated criminal appeals which involve the constitutionality of Louisiana Act No. 313 of 1979. Defendants in the first consolidated appeal (80-K-2213) are Kenneth LeCompte, John Lagrange, Pedro Rodrigues, G. Vera Martinez, and John M. Hirschler, and in the second consolidated appeal (80-KA-2271) defendants are Deborah Ewing and Luke Dubaz. The former defendants were proceeded against by bill of information for possession of 16,000 lbs. of marijuana, and the latter defendants were proceeded against by indictment for possession of cocaine and “related substances” in the amount of over 400 grams. Motions to quash were filed and granted in each of the two consolidated appeals. The State now appeals these rulings.

The charges against both sets of defendants involve the allegation that they violated Louisiana Act No. 313 of 1979, which is contained in the Revised Statutes of this state as LSA-R.S. 40:967 (E) through (G), which read as follows:

“E. (1) Except as otherwise authorized in this Part, any person who knowingly or intentionally possesses one hundred pounds or more, but less than two thousand pounds of marijuana, tetrahydrocan-nabinol or chemical derivatives thereof, shall be sentenced to serve a term of imprisonment at hard labor of not less than five years, nor more than ten years, and to pay a fine of not less than twenty-five thousand dollars.
(2) Except as otherwise authorized in this Part, any person who knowingly or intentionally possesses two thousand pounds or more, but less than ten thousand pounds, of marijuana, tetrahydro-cannobinol or chemical derivatives thereof, shall be sentenced to serve a term of imprisonment at hard labor of not less than ten years, nor more than fifteen years, and to pay a fine of not less than fifty thousand dollars.
(3) Except as otherwise authorized in this Part, any person who knowingly or intentionally possesses ten thousand pounds or more of marijuana, tetrahydro-cannabinol or chemical derivatives thereof, shall be sentenced to serve a term of imprisonment at hard labor of not less than fifteen years, nor more than twenty years, and to pay a fine of not less than two hundred thousand dollars.
F. (1) Except as otherwise authorized in this Part, any person who knowingly or intentionally possesses twenty-eight grams or more, but less than two hundred grams, of cocaine or related substances as provided in Schedule 11(A)(4) of R.S. 40:964, shall be sentenced to serve a term of imprisonment at hard labor of not less than five years, nor more than thirty years, and to pay a fine of not less than fifty thousand dollars.
(2) Except as otherwise authorized in this Part, any person who knowingly or intentionally possesses two hundred grams or more, but less than four hundred grams, of cocaine or related substances as provided in Schedule 11(A)(4) of R.S. 40:964, shall be sentenced to serve a term of imprisonment at hard labor of not less than ten years, nor more than thirty years, and to pay a fine of not less than one hundred thousand dollars.
(3) Except as otherwise authorized in this Part, any person who knowingly or intentionally possesses four hundred grams or more of cocaine or related substances as provided in Schedule 11(A)(4) of R.S. 40:964, shall be sentenced to serve a term of imprisonment at hard labor of not less than fifteen years, nor more than thirty years, and to pay a fine of not less than two hundred fifty thousand dollars.
G. (1) Except as provided in Paragraph (2) hereof, with respect to any person to whom the provisions of Subsections E and/or F are applicable, the adjudication of guilt or imposition of sentence shall not be suspended, deferred, or withheld, nor shall such person be eligible for probation or parole prior to serving the minimum sentences provided by Subsections E and/or F.
(2) The district attorney may move the sentencing court to reduce or suspend the sentence of any person to whom the provisions of Subsections E and/or F are applicable who provides substantial assistance in the identification, arrest or conviction of other parties or conspirators to the crime for which he was convicted or to related crimes. The arresting agency shall be given an opportunity to be heard in reference to any such motion. The court may reduce or suspend the sentence if it finds that the defendant rendered such substantial assistance.”

The motions to quash were founded upon the contention that the subject statute was unconstitutional. The arguments in support of this contention, stated briefly, were that: (1) The statute provides for cruel and unusual punishment contrary to the Eighth Amendment to the United States Constitution, and “cruel, excessive, or unusual punishment” contrary to the provisions of Article I, Section 20 of the Louisiana Constitution of 1974 because the penalties provided are unduly harsh and because no maximum is required for the mandatory fine. (2) The statute in permitting a reduction or suspension of sentence by the trial court, on motion of the district attorney, to one “who provides substantial assistance in the identification, arrest, or conviction of other parties or conspirators to the crime for which he was convicted or to related crimes”, coerces a waiver of Fifth Amendment rights by giving legislatively sanctioned preference to one who engages in self-incrimination and, further, violates the doctrine of separation of powers by delegating some of the exclusive sentencing powers of the judiciary to the district attorney. (3) Subsection G(2) of the statute is impermis-sibly vague in its use of the term “substantial assistance” without providing any criteria by which it can be determined objectively as to when substantial assistance has been rendered.

By Act 313 of 1979, the Louisiana legislature amended LSA-R.S. 40:967 to provide rather severe mandatory penalties for the possession of large amounts of marijuana, cocaine or related substances. Defendants convicted under the most onerous provisions of this Act (possession of over 10,000 pounds of marijuana and over 400 grams of cocaine) are subject to a minimum term of fifteen years imprisonment without benefit of suspension, probation or parole and a minimum fine of $200,000 for marijuana and $250,000 for cocaine. LSA-R.S. 40:967(E), (F) and (G)(1). However, the district attorney is granted discretion to “move the sentencing court to reduce or suspend the sentence of any person to whom the provisions of Subsections E and/or F are applicable who provides substantial assistance in the identification, arrest or conviction of other parties or conspirators to the crime for which he was convicted or to related crimes.” LSA-R.S. 40:967R.S. 40:(G). These provisions were patterned after a virtually identical Florida “trafficking” statute and were intended to halt the dramatic rise in drug smuggling along the Louisiana coast which was believed to have occurred as a result of the earlier Florida clampdown. Section 893.-135, Florida Statutes (1979). Both legislative schemes seek to provide enforcement officials with an additional tool for obtaining the assistance of a defendant in the identification, arrest or conviction of those persons involved in the smuggling operations. The Florida Supreme Court upheld the constitutional validity of its statute in State of Florida v. Carlos M. Benitez and Esperanza Benitez, Fla., 395 So.2d 514, stating the legislative purpose as follows:

“Section 893.135 was enacted to assist law enforcement authorities in the investigation and prosecution of illegal drug trafficking at all levels of distribution, from the importer-organizer down to the ‘pusher’ on the street. The harsh mandatory penalties of subsection (1), ameliorated by the prospect of leniency in subsection (3), were clearly calculated to provide a strong incentive for drug violators to cooperate with law enforcement authorities and become informers. No one argues that the elimination of illegal drug traffic is not a beneficial and worthwhile goal, or that the goals of this legislation are not meritorious.”

We find the above statement of the Florida Supreme Court clearly sets forth the general’purpose of the Louisiana legislature in enacting Act 313 of 1979, and we have no doubt that legislature was motivated by legitimate, and indeed, wise and proper considerations, in view of the substantial increase in drug smuggling activities along the Louisiana coast.

EXCESSIVE PUNISHMENT

However commendable the legislative purpose, we find the penal portion of the statute (Subsections E and F) unconstitutionally provides for a minimum fine with no maximum, our decision in State v. Goode, 380 So.2d 1361 (La.1980) being almost directly in point. Goode likewise involved a statute (LSA-R.S. 14:50.1) based upon a very commendable policy, the desire to deter crimes against the person of individuals age sixty-five or older. In Goode the statute provided a minimum term of imprisonment but no maximum and was held to provide an excessive punishment, and hence to violate this state’s constitutional prohibition of “excessive punishment” as found in Art. 1, Sec. 20, Louisiana Constitution of 1974. The constitutionality of the punishment in Goode was, as in these cases, challenged on motion to quash. Stating that it would be possible for a trial court to impose a term of imprisonment grossly disproportionate to the severity of the crime, we were compelled to declare the statute invalid in that case as providing for an “excessive” punishment contrary to the state’s Constitution.

In the present case, it takes only a little imagination to think of a fine that would be grossly disproportionate to the offense prohibited, especially in view of the fact that the statute in its various gradations carries with it a term of imprisonment which the court is required to impose on top of the unlimited maximum of the fine. However despicable trafficking in drugs, and however admirable the legislative purpose in seeking to put an end to or even a partial cessation of the practice, we cannot uphold a statute that permits an unlimited fine, especially as we have struck down a somewhat similar statute in State v. Goode, supra on the ground that it violated the excessive punishment clause of this state’s Constitution.

Defendants contend that sentences mandated by Subsections (E), (F) and (G) are unduly harsh and, therefore, constitute “cruel and unusual” punishment contrary to the Eighth Amendment to the United States Constitution, and “Cruel, excessive or unusual” punishment contrary to Article 1, Section 20 of the Louisiana Constitution of 1974. The defendants argue that under the standards set forth in Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976), the punishment under the subject statute is grossly disproportionate to the severity of the offense. In view of the gross social evil resulting from the increased trafficking in drugs in this state, we cannot find that the punishment provided in this statute is, at least facially, disproportionate to the offense. In State v. Mallery, 364 So.2d 1283 (La.1978) we declared:

“According to the defense a guarantee that the sentence be proportioned to the offense is to be found in Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976). Such a proposition is in the first instance a matter which falls squarely within the constitutional prerogative of the Legislature. Except as limited by the constitution its authority is plenary. Its determination is clothed with a presumption of constitutionality which persists until a finding is made, supported by adequate evidence, that the enactment prescribing punishment has transcended the limitation on legislative power set forth in constitutional enactments of equal or superior dignity. La. Const, arts. I, II, III & V; La.Civil Code art. 1.”

(364 So.2d 1283, 1284, 1285)

We, therefore, find the statute to be unconstitutional only insofar as it provides no maximum fine, and sever those portions of the statute that provide the minimum fine, thus permitting to remain only that portion providing for a term of imprisonment. With the unconstitutional minimum fine excised, the remainder of the statute still accomplishes the legislative purpose, thus fulfilling the requirements of severability. State v. Johnson, 343 So.2d 705 (La.1977).

SELF-IN CRIMINATION

Defendants contend that conditioning their right to relief from the severe mandatory sentences imposed under LSA— R.S. 40:967 (E) and (F) upon their providing “substantial assistance in the identification, arrest or conviction of other parties” as set forth in Subsection 967 (G) (2), coerces a waiver of the Fifth Amendment privilege against self-incrimination by giving legislatively sanctioned preference to one who engages in self incrimination. While clearly the “substantial assistance” provision of this statute is designed to encourage the convicted defendant to cooperate with the authorities, the statute is not compulsory, and it is reasonable to assume that a defendant could furnish “substantial assistance” in the identification of other parties without incriminating himself in acts other than those for which he already stands convicted. As these cases are before us on Motions to Quash and there has been neither a specific claim of privilege nor a hearing as to the merits of such a claim, the defendants are in effect contending that the “substantial assistance” provisions of this statute necessarily undermine any defendant’s privilege against self-incrimination. Stated another way the defendants argue that because non-cooperating defendants are punished more severely, the “substantial assistance” provision clearly poses a threat of coercing waiver of the defendants’ privilege. We do not agree as we find that the provisions of Subsection (G) (2) can be met without a defendant having necessarily to relinquish Fifth Amendment rights.

Even in cases where a defendant’s claim of privilege is reasonable, the use of the “substantial assistance” provision as a prerequisite to leniency in sentencing need not work to penalize the defendant for asserting his privilege. The benefits of Subsection (G) (2) could be obtained by a cooperating defendant in a manner consistent with constitutional law regarding assertion of the self-incrimination privilege, since a valid claim of the privilege could be overcome with a grant of immunity from further prosecution. See Roberts v. United States, 445 U.S. 552, 100 S.Ct. 1358, 63 L.Ed.2d 622 (1980).

Accordingly, we hold that the statute as it stands does not offend the defendants’ rights against self-incrimination and is, therefore, constitutionally valid.

SEPARATION OF POWERS

Defendants contend that the “substantial assistance” provisions of LSA — R.S. 40:967 (G)(2) strips the judiciary of its traditional sentencing discretion by delegating a portion of this discretion to the district attorney. They claim that this delegation of judicial power to the executive branch constitutes a violation of the doctrine of separation of powers enunciated in Art. 2, Sec. 2 of the Louisiana Constitution of 1974.

As stated earlier, the newly-enacted “trafficking” provisions of LSA-R.S. 40:967 impose harsh mandatory minimum prison terms and fines without suspension or reduction for individuals convicted for the possession of large amounts of cocaine or marijuana. Maximum terms of imprisonment are also provided by the statute, thus leaving the sentencing judge free to impose, within the specified range, any term of imprisonment (we find the failure to provide a maximum fine unconstitutional). The limitation in this statute of the court’s authority to suspend the sentence does not violate Art. 2, Sec. 2 of our Constitution, since the legislature may constitutionally limit the discretion of the courts to impose sentence. State v. Normand, 285 So.2d 210 (La.1973). The basic sentencing provisions of the statute, absent Subsection (G)(2), do no more than is constitutionally permitted.

Subsequent to conviction, Subsection (GX2) grants the district attorney the discretion to move the sentencing court to reduce or suspend the sentence of any person who provides substantial assistance. Thus, it is argued, that as to defendants who attempt to provide assistance the range of possible sentences lies, at least initially, within the discretion of the district attorney. Once the district attorney has moved for the reduction or suspension, the decision as to whether or not to grant the reduction or suspension is by the statute solely within the court’s discretion. The final or ultimate decision, therefore, rests not with the district attorney, but with the courts. While it is true that this provision of the statute does not permit the courts to act on their own motion, the effect of this provision is to broaden the sentencing discretion of the courts under the full statute. As the basic limitation (mandatory minimum sentence without authority to suspend) of the sentencing discretion of the courts is constitutional (State v. Normand, supra), the conditional removal of that limitation cannot be considered unconstitutional.

We have also considered a question not raised by defendants in brief: Does the statute grant to the courts the power to commute sentences, which is a power limited by the Louisiana Constitution to the governor alone?

The governor is granted the power to commute sentences by Art. 4, Sec. 5 of the Louisiana Constitution of 1974. The pertinent portion of the cited Article and Section reads as follows:

“(E) Pardon, Commutation, Reprieve, and Remission; Board of Pardons.
(1) The governor may grant reprieves to persons convicted of offenses against the state and, upon recommendation of the Board of Pardons, may commute sentences, pardon those von-cited of offenses against the state, and remit fines and forfeitures imposed for such offenses. However, a first offender never previously convicted of a felony shall be pardoned automatically upon completion of his sentence, without a recommendation of the Board of Pardons and without action by the governor.
(2) The Board of Pardons shall consist of five electors appointed by the governor, subject to confirmation by the Senate. Each member of the board shall serve a term concurrent with that of the governor appointing him.”

Although the language of the comparable provision of the Louisiana Constitution of 1921 differed, the meaning of the comparable provision (Art. V, Sec. 10) was for purposes of our consideration identical: The governor on recommendation of the Board of Pardons (or, under the 1921 Constitution, the lieutenant governor, attorney general, and the trial judge, or any two thereof) may commute sentences. The constitutional grant of the power to commute sentences to the governor (on recommendation of the “Board of Pardons” or any two members thereof) was held by this Court to be an exclusive grant to the governor of the power to commute sentences in State ex rel. Francis v. Resweber, 212 La. 143, 31 So.2d 697 (1947), preventing the courts of this state from exercising the power to commute. As the grant of the power to the governor on recommendation of the Board of Pardons to commute sentences is not narrowed under the Constitution of 1974, and as the Convention that drafted that Constitution had ample opportunity to grant a similar power to the judiciary, independent of the governor’s power, had it wanted to do so, Resweber is still clearly the law, and the courts of this state are without power to commute sentences as a matter of constitutional doctrine.

We must then address the question of whether or not the restriction of the power to commute sentences to the governor, likewise restricts the power to “reduce” sentences to the governor, using the word employed by the statute under consideration. As used in criminal law, the word “commutation” is defined as follows in Black’s Law Dictionary (4th ed. 1951):

“The change of a punishment from a greater to a less; as from hanging to imprisonment.”

Clearly, a reduction of sentence by the judiciary under LSA-R.S. 40:967 (G)(2) is a commutation of the sentence that runs counter to constitutional limitation of the power to commute to the governor. The courts of this state cannot constitutionally reduce or commute a sentence. Since the statute permits a reduction or commutation of a sentence by the judiciary, it may be violative of this state’s constitution, and of the constitutional doctrine of separation of powers.

The Code of Criminal Procedure in Art. 881 permits the trial court to “amend or change” a sentence prior to the beginning of its execution. In language in Comment (a) under that article the redactors state that reduction of sentence after the beginning of its execution should be impermissible, as to so permit would virtually constitute the trial judge as a “ ‘one man pardon board’ ”. The language of that comment was quoted by this Court with approval in State v. Battaglia, 377 So.2d 264 (La.1979), we thereby indicating that we, as a matter of judicial policy as well as constitutional doctrine and statutory policy, will not permit the judiciary to reduce sentence after its execution has commenced.

The statute under consideration, LSA-R.S. 40:967 (G)(2) permits a reduction of sentence that could be construed to be granted to the courts for a period extending both before and after the commencing of execution of sentence. If the statute is so interpreted, it is clearly unconstitutional, as it infringes upon the exclusive grant to the governor of the power to reduce or commute sentences after the execution of the sentence begins. Thus, if so read, it would violate the doctrine of separation of powers as found in Art. 2, Sec. 2. Louisiana Constitution of 1974.

However, if a statutory provision is susceptible of both a constitutional and an unconstitutional interpretation, it must be interpreted so that its constitutionality will be sustained. The legislature is presumed not to intend to enact an unconstitutional statute. 16 C.J.S. Constitutional Law, Sec. 98. Thus, we must interpret LSA-R.S. 40:967 (G)(2) to permit a reduction of sentence only until such time as the execution of sentence has begun. Thus, read, the statute is constitutionally valid.

DUE PROCESS — VAGUENESS

Defendants contend that LSA-R.S. 40:967 (G)(2) is unconstitutionally vague in its use of the term “substantial assistance” in prescribing the prerequisites for a defendant to obtain leniency, since this section does not prescribe any criteria by which it can be determined objectively as to when substantial assistance has been rendered. Defendants argue further that because of the failure of the statute to afford any guidance as to when “substantial assistance” has been provided, it allows for arbitrary enforcement and unreasonable application in violation of their federal and state guarantees of due process of law.

In order to satisfy the constitutional requirements of due process a statute creating or defining an offense and fixing the punishment therefor must be sufficiently explicit in its description of the acts, conduct or conditions required or forbidden, to prescribe the elements of the offense with reasonable certainty, fix an ascertainable standard of guilt, and make it known to those to whom it is addressed what conduct on their part will render them liable for its penalties, and not be so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application. 16A C.J.S. Constitutional Law, Sec. 580, State v. Baker, 359 So.2d 110 (1978). There is no claim that the definition of the offense or penalties provided are unclear, but the effect of a defendant providing “substantial assistance” can have a direct bearing on the extent or severity of the punishment imposed. We believe, therefore, that the stated principles regarding due process standards for criminal statutes must be applied.

The phrase “substantial assistance in the identification, arrest or conviction of other parties or conspirators to the crime for which he was convicted or related crimes” is sufficiently definite in the context of the statute taken as a whole. We find the language of the provision sets forth the requirements for leniency with as much exactitude as it is reasonably possible for a statute to do, and that the provision is susceptible of common understanding and can, therefore, be uniformly applied.

We, therefore, find the statute constitutional in all respects except in that part which imposes a minimum fine and no maximum, and strike down that part. We further find that the statute must be so interpreted that a reduction of sentence cannot be granted by the courts of this state after the commencement of execution of sentence.

We vacate the granting of the motions to quash in the two individual cases now before us, and remand the cases for further proceedings in accordance with the views expressed in this opinion.

MOTIONS TO QUASH DENIED.

DIXON, C. J.,

concurs in part and dissents in part, agreeing that the provisions concerning the fine should be excised and that the statute is not unconstitutionally vague and does not violate the doctrine of separation of powers, but otherwise disagreeing with the conclusion that there is a conflict with the governor’s power to commute sentences.

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

LEMMON, J., concurs and assigns reasons.

WATSON, Justice,

concurring in part and dissenting in part.

I concur with the majority that the sentencing provisions must be restricted by excising the unconstitutional penalty of unlimited fines.

However, R.S. 40:967 G (2) is also unconstitutional in giving the district attorney a judicial role in sentencing, and should be excised in that respect.

Therefore, I concur in part and dissent in part.

LEMMON, Justice,

concurring.

I agree with the principal holding in this case, which is that the provisions of R.S. 40:967 E, F and G as to the fine must be struck because no maximum fine has been established. Therefore, the trial court’s ruling on the motion to quash must be reversed in all respects except insofar as the ruling strikes the fine from the statute.

The constitutionality of a statute which places exclusive authority in the district attorney to move for suspension or reduction of a mandatory minimum sentence presents more difficulty, but need not be decided in this case. R.S. 40:970 G (2) is not facially unconstitutional, because the statute can be construed extensively to be constitutional. That is, since the statute expressly authorizes the trial court to grant a suspension or reduction of the mandatory minimum sentence when the defendant had provided substantial assistance in the identification, arrest or conviction of other drug violators, then the statute may be construed to authorize the trial court to do so, not only on the district attorney’s motion, but also on the motion of the defendant or on the court’s own motion. I would leave this question to be decided in a factual context, rather than on a motion to quash.

I would also leave for adjudication in future cases the question of whether the Legislature can authorize the trial court to reduce a sentence after execution has begun. While I have serious doubts that such action constitutes commutation of the sentence or invades any exclusive power of the governor, the language of the majority opinion is not necessarily to the holding, and I expressly decline to subscribe to that language.

ON REHEARING

CALOGERO, Justice.

On original hearing, we considered the constitutionality of La.R.S. 40:967(E)-{G), which imposed increasingly heavy mandatory penalties for possession of large amounts of marijuana, cocaine or their derivatives. We held that the penalty portions of the statute, which imposed minimum fines without specifying maximum fines, offend the constitutional prohibition against excessive punishment and were therefore invalid, with those provisions nonetheless severable.

We found the remainder of the statute, including La.R.S. 40:967(G)(2) constitutional, but only after interpreting that section to permit the reduction or suspension of sentence only until such time as the execution of sentence has begun. Upon application by LeCompte and his codefendants, we granted a rehearing because of our concern that our treatment of the challenge to the statute based upon separation of powers requires additional consideration.

This concern on rehearing focuses upon the role given the district attorney by La. R.S. 40:967(G)(2). The statute allows the district attorney to move the sentencing court to reduce or suspend the sentence of a convicted defendant who provides substantial assistance in the identification, arrest or conviction of other parties or conspirators to the crime for which he was convicted, or to related crimes. Defendants argue that allowing the district attorney that particular statutory role in sentencing violates Louisiana’s constitutional separation of powers.

The interpretation of La.R.S. 40:967(G)(2) urged upon us by defendants is indeed constitutionally suspect as being in violation of Louisiana’s constitutional separation of powers article. Under that interpretation, a person convicted of possession of 100 pounds of marijuana or 28 grams of cocaine shall be sentenced to a minimum prison term of five years at hard labor and the adjudication of his guilt or the imposition of his sentence shall not be suspended, deferred or withheld, nor shall he be eligible for probation or parole, with this exception: The trial judge may reduce or suspend the sentence only if the district attorney first moves for such reduction or suspension, alleging that the defendant has provided substantial assistance, and the trial judge finds that defendant has rendered substantial assistance.

On original hearing we concluded that Louisiana’s constitutional separation of powers was not offended, even coneeding (or assuming) that a fully discretionary motion by the district attorney is required to trigger the trial judge’s exercise of the discretion afforded him by the statute to reduce or suspend the sentence. We reasoned that the final or ultimate decision to reduce or suspend the sentence rests not with the district attorney but with the courts. This reason for finding that the statute did not violate Louisiana’s separation of powers was the identical one given by the Florida Supreme Court in interpreting an almost identical statute under a similar separation of powers attack. State v. Benitez, 395 So.2d 514 (Fla.1981). Benitez, in turn, relied upon a 1976 decision of the New York Court of Appeal. People v. Eason, 40 N.Y.2d 297 at 301, 386 N.Y.S.2d 673 at 676, 353 N.E.2d 587 at 589 (1976):

“So long as a statute does not wrest from courts the final discretion to impose sentence, it does not infringe upon the constitutional division of responsibilities.”

We are not persuaded by the logic of those opinions. Giving the trial judge the final authority to impose a reduced or suspended sentence, if the district attorney is his discretion decides to recommend such, is hardly a good argument that the judiciary’s power to sentence following conviction is not invaded by the district attorney. More persuasive in our view are Esteybar v. The Municipal Court for the Long Beach Judicial District of Los Angeles County, 5 Cal.3d 119, 95 Cal.Rptr. 524, 485 P.2d 1140 (1971), and The People v. The Superior Court of San Mateo County, Lawrence On Tai Ho, Real Party in Interest, 11 Cal.3d 59, 113 Cal.Rptr. 21, 520 P.2d 405 (1974).

In Esteybar, the defendant was charged with possession of marijuana, an offense which in the absence of any prior felony convictions may be treated as either a felony or a misdemeanor. The statute, however, dictated that the magistrate could proceed with the offense as a misdemeanor only after first obtaining the consent of the prosecuting attorney. The California Supreme Court found that this statute violated the doctrine of separation of powers set forth in the California Constitution, concluding among other reasons:

“Under our system of separation of powers, we cannot tolerate permitting such an advocate [the prosecuting attorney] to possess the power to prevent the exercise of judicial discretion as a bargaining tool to obtain guilty pleas.” 95 Cal.Rptr. 524, 485 P.2d at 1144.

The court concluded that the defendant was surely entitled to have an independent determination of whether he should be held to answer on a felony or misdemeanor and this was not possible when the exercise of judicial discretion depended upon the pleasure of the executive.

The On Tai Ho case also involved the constitutionality of a prosecutorial veto over an exercise of judicial power. At issue was a California Penal Code provision which required the consent of the prosecutor before a trial judge might order that a defendant charged with a narcotic offense be diverted into a pretrial program for treatment and rehabilitation. The court quoted an earlier decision, People v. Tenorio, 3 Cal.3d 89, 89 Cal.Rptr. 249, 473 P.2d 993 (1970) which had said:

“The judicial power is compromised when a judge, who believes that a charge should be dismissed in the interest of justice, wishes to exercise the power to dismiss but finds that before he may do so he must bargain with the prosecutor. The judicial power must be independent, and a judge should never be required to pay for its exercise.”

The court then held that the provision being challenged was an impermissible invasion of the constitutional province of the judiciary and therefore violative of the constitutional requirement of separation of powers.

Louisiana’s Constitution divides the state’s governmental powers among three distinct branches: legislative, executive and judicial. La.Const. art. 2 § 1. The Constitution further provides that these branches shall be separate, for in Article 2, § 2, the Constitution states: “Except as otherwise provided by this constitution, no one of these branches, nor any person holding office in one of them, shall exercise power belonging to either of the others.” This division creates in the judicial branch powers with which the legislative and executive branches shall not interfere. Singer Hutner Levine Seeman & Stuart v. La. State Bar Ass’n, 378 So.2d 423 (La.1979). The Constitution further states: “The judicial power is vested in a supreme court, court of appeal, district court, and other courts authorized by this article.” La.Const. art. 5 § 1. One of the traditional, inherent and exclusive powers of the judiciary is the power to sentence.

In this reconsideration of the separation of powers issue, we are not satisfied with our earlier reasons. If the trial court’s decision whether to reduce or suspend the sentence is conditioned upon the district attorney’s arbitrary discretion, admittedly coupled with his having to prove defendant’s substantial assistance in the identification, arrest or conviction of other parties, the consequent sentencing (reduced or not, suspended or not) is at least as much the discretionary choice of the district attorney as that of the trial judge. Actually it is more so the choice of the district attorney if his motion is an outset requirement in order to permit the sentencing judge’s considering a reduced or suspended sentence. Under Louisiana’s constitutional separation of powers, the district attorney, a member of the executive branch, should have no role in sentencing, an obvious judicial function.

As we stated above, if the sentence is interpreted as defendant urges, it would likely violate the separation of powers articles of the Louisiana Constitution. However, the statute is subject to more than one reasonable interpretation and we should interpret statutes in such a way as to uphold their constitutionality. State v. Newton, 328 So.2d 110 (La.1975) (on rehearing). This is so because the Legislature is presumed to have acted in a constitutional manner. Newton, supra. On this reconsideration, we find that the statute can reasonably be interpreted as permitting suspension/reduction of sentence in instances other than where the district attorney so moves.

Basically, La.R.S. 40:967(E)-(F) provides for substantial minimum jail sentences for the knowing or intentional possession of large quantities of marijuana or cocaine. Subsection (G)(1) of the statute mandates that these jail terms shall not be suspended, deferred or withheld, nor shall the convicted defendant be eligible for probation or parole prior to serving the minimum sentence, except as provided in La.R.S. 40:967(GX2). That portion of the statute [Subsection (G)(2)] consists of three sentences. The first sentence provides that the district attorney may move the sentencing court to reduce or suspend the sentence of persons to whom the provisions of (E) and/or (F) are applicable if such persons provide substantial assistance in the identification, arrest or conviction of other parties or conspirators to the crime for which they were convicted or to related crimes. A second sentence gives the arresting agency an opportunity to be heard with reference to any reduction or suspension. The third sentence states that the court may reduce or suspend the sentence if it finds that the defendant has rendered substantial assistance. Certainly, one reasonable interpretation would be that, primarily because of the order in which the sentences appear, the district attorney must first exercise his discretion to move for a reduction or suspension before the court is afforded any discretion to reduce or suspend sentence. This is the interpretation espoused by defendants at bar. However, that interpretation is not the only reasonable one that can be given to Subsection (G)(2).

Another reasonable interpretation is that the court is very specifically given the discretion to reduce or suspend sentence if it finds that the defendant has rendered substantial assistance, etc. Although there also appears a specific provision for the district attorney to so move, the court’s discretion and authority under this interpretation is express and not conditional. Since the court has the discretion to reduce or suspend sentence when the defendant has met the requirements of the statute, the court may do so on its own motion, or its ruling may be triggered by motion of either the district attorney or the defendant.

We interpret the statute in accordance with the preceding paragraph and in so doing obviate a constitutional separation of powers problem. Under our interpretation, there is no exclusive authority in the district attorney and there is thus no invasion of the judge’s sentencing powers. The statute is therefore constitutional.

DECREE

For the foregoing reasons, and for the other reasons expressed in our original opinion not inconsistent herewith, the trial judge’s ruling on the motion to quash is reversed and the case is remanded to the trial court.

ORIGINAL DECREE REINSTATED; MOTION TO QUASH DENIED.

DIXON, C. J., dissents with reasons.

MARCUS, J., dissents and assigns reasons.

BLANCHE, J., dissents for reasons assigned by DIXON, C. J.

DIXON, Chief Justice

(dissenting)

I respectfully dissent, believing R.S. 40:967 G does not authorize the exercise of the judicial power by the district attorney, and therefore does not violate the doctrine of separation of powers. The provisions for unlimited fines are probably unconstitutional on the face of the statute.

MARCUS, Justice

(dissenting).

Since the final or ultimate decision to reduce or suspend the sentence rests with the court and not the district attorney, I do not consider that the statute in question violates the constitutional requirement of separation of powers. Moreover, I disagree with the interpretation of the statute by the majority. Accordingly, I respectfully dissent.

       Judges Frederick S. Ellis, Luther F. Cole and J. Louis Watkins, Jr. of the First Circuit Court of Appeal participated in this decision as Associate Justices Ad Hoc, joined by Chief Justice Dixon and Associate Justices Marcus, Watson, and Lemmon.

      . Act 313 of 1979 contained the following sev-erability clause:
      “Section 2. If any provision or item of this Act or the application thereof is held invalid, such invalidity shall not affect other provisions, items, or applications of this Act which can be given effect without the invalid provisions, items, or applications, and to this end the provisions of this Act are hereby declared severable.”

      . In State v. Benitez, supra, the Florida Supreme Court cogently answered the contention that a similar provision was in violation of Fifth Amendment rights as follows:
      “Finally, the appellees argue that section 893.135 coerces a defendant into relinquishing his fifth amendment privilege against self-incrimination by denying him sentencing leniency unless he cooperates with the authorities. We reject this argument, primarily because it depends on unwarranted assumptions about the nature of the informer’s disclosures. Nothing in the statute suggests that “substantial assistance” must incriminate the defendant of crimes other than those for which he has already been convicted (and for which no fifth amendment privilege is obviously necessary). We acknowledge the risk of prosecution in other jurisdictions. Nonetheless, a defendant need not invoke subsection (3), as nothing in the statute is compulsive. Putting a defendant to a difficult choice is not necessarily forbidden by the fifth amendment. See, e.g., Corbitt v. New Jersey, [439 U.S. 212,] 99 S.Ct. 492, 497, [58 L.Ed.2d 466] (U.S. 1978) (‘[N]ot every burden on the exercise of a constitutional right, and not every pressure or encouragement to waive such a right, is invalid.’ (footnote omitted)); Bordenkircher v. Hayes, 434 U.S. 357, [98 S.Ct. 663, 54 L.Ed.2d 604] (1978); McGautha v. California, 402 U.S. 183, [91 S.Ct. 1454, 28 L.Ed.2d 711] (1971). No constitutional deprivation results if a defendant elects to reap the benefits of subsection (3).
      With respect to those cases which say that the trial courts may not enhance a sentence based on a defendant’s failure to cooperate with the authorities, see United States v. Garcia, 544 F.2d 681 (3rd Cir. 1976); United States v. Acosta, 501 F.2d 1330 (5th Cir. 1974) (Gee, J., dissenting), adopted en banc, 509 F.2d 539 (5th Cir.), cert. denied, 423 U.S. 891, [96 S.Ct. 188, 46 L.Ed.2d 122] (1975); United States v. Rogers, 504 F.2d 1079 (5th Cir. 1974), cert. denied, 422 U.S. 1042, [95 S.Ct. 2655, 45 L.Ed.2d 693] (1975), we believe that Roberts v. United States, [445 U.S. 552] 100 S.Ct. 1358, [63 L.Ed.2d 622] (U.S.1980), went a long way toward resolving this issue against appellees. The Court in Roberts concluded that the district court properly considered the defendant’s refusal to cooperate as one factor in imposing consecutive sentences. Admittedly, a fifth amendment claim was not properly raised in Roberts and ‘would have merited serious consideration’ if it had been. Id. at 1364. We conclude, however, that for fifth amendment purposes the situation in Roberts is distinguishable from that here. A sentence reduction obtained by a sentenced convict due to his cooperation is not tantamount to the enhancement of a sentence imposed on an unsentenced, but convicted defendant as a result of his lack of cooperation. The former is no different from a gratuitous sentence reduction offered to one already incarcerated who, even without statutory sanction, risks reincrimination in exchange for early release benefits.”

      . Though the Louisiana statutory scheme is phrased only in terms of affording leniency to a cooperating defendant (rather than punishing a non-cooperating one), the same principles and considerations expressed in Roberts are applicable.

      . The fact that the Legislature has granted the trial court express authority to suspend or reduce the mandatory minimum sentence, upon a finding of defendant’s “substantial assistance”, and has expressly authorized the district attorney to file such a motion does not necessarily preclude the defendant or the court from filing such a motion.

       Consistent with the procedures utilized by this court in assigning Court of Appeal Judges to sit as Justices Ad Hoc in criminal appeals (see State v. Petterway, 403 So.2d 1157 (La., 1981)), applications for and consideration upon rehearing are entertained by the permanent court as was the case here.

      . Codefendants with LeCompte are John La-Grange, Pedro Rodriguez, G. Vera Martinez and John V. Hirschler.

      . The minimum sentence becomes longer as the quantity of contraband possessed increases. For possession of ten thousand pounds or more of marijuana, or four hundred grams or more of cocaine, the minimum sentence is fifteen years at hard labor.

      . As Justice Lemmon noted in his concurring opinion on original hearing, the fact that the Legislature has granted the trial court express authority to suspend or reduce the mandatory minimum sentence upon finding that the defendant has rendered “substantial assistance,” and has expressly authorized the district attorney to file such a motion does not necessarily preclude the defendant’s filing such motions or the court’s acting under the statute on its own motion.


source: Caselaw Access Project

author: CALOGERO, Justice,

license: Public Domain

text:
    STATE of Louisiana v. David Jon LINER.
    No. 80-KA-2109.
    Supreme Court of Louisiana.
    Oct. 6, 1981.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, William B. Faust, III, James F. McKay, Asst. Attys. Gen., for plaintiff-ap-pellee.
    Arthur A. Lemann, III, New Orleans, Allen A. MeElroy, Jr., Berwick, for defendant-appellant.
    For majority opinion, see 397 So.2d 506.
   CALOGERO, Justice,

concurring.

I agree that the trial judge did not err in denying defendant’s motion for a new trial in which he alleged that the state had presented insufficient evidence to overcome his proof that he was insane at the time of the crime.

Unlike some other jurisdictions, Louisiana does not require the state to prove sanity as an element of the offense. Rather, in Louisiana, a defendant is presumed sane. R.S. 15:432. Insanity is an affirmative defense and it is incumbent upon the defendant to prove his insanity by a preponderance of the evidence. C.Cr.P. art. 652; State v. Claibon, 395 So.2d 770 (La.1981); State v. Roy, 395 So.2d 664 (La.1981). Louisiana Revised Statute 14:14 states that legal insanity means that a defendant has a mental disease or defect which prevents him from distinguishing right from wrong with reference to the conduct which forms the basis for the criminal charge against him. The determination of sanity is a factual matter and, as such, is reserved to the jury or other fact finder. Consequently, until recently, this Court did not review the rejection of an insanity defense so long as there was “some evidence” on which to base a finding that a defense was sane at the time of the alleged offense because the Court is limited by the state constitution to review of questions of law in criminal cases. La. Const, of 1974, Art. 5, § 5(C); State v. Poree, 386 So.2d 1331 (La.1980).

Recently, however, this Court decided Claibon, supra, and Roy, supra, and held that the test of Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), must be applied to situations where the defendant pleads the affirmative defense of insanity and claims that the record evidence does not support a finding of guilt beyond a reasonable doubt. Under Jackson the critical inquiry 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... . 443 U.S. at 319, 99 S.Ct. at 2789, 61 L.Ed.2d at 573.

Our Claibon and Roy decisions were prompted by the holding of the United States Supreme Court in Moore v. Duckworth, 443 U.S. 713, 99 S.Ct. 3088, 61 L.Ed.2d 865 (1979), that the “no evidence” standard was the improper one to apply in reviewing the conviction of a state prisoner who had entered an insanity plea.

We enunciated the proper standard of review in the following manner: whether a rational fact finder, viewing the evidence in' the light most favorable to the prosecution, could not have concluded that defendant had failed to prove by a preponderance of the evidence that he was insane at the time of the offense. Applying this standard, we affirmed Claibon’s conviction. However, in Roy we reversed upon finding that Roy had proved by a preponderance of the evidence that he was insane at the time of the offense and that a rational fact finder could not have concluded otherwise.

In the instant case, as in Claibon, only the defense put on expert testimony regarding defendant’s mental state at the time of the offense. In Claibon, we noted that the United States Supreme Court had affirmed the conviction in Moore v. Duckworth, supra, despite the lack of expert witnesses for the prosecution. In the case before us, the defendant called members of his family as witnesses. None of these people testified that defendant was insane in their opinion. Actually, as the majority notes, defendant’s brother and his sister both specifically said that they did not consider him him insane.

The state introduced defendant’s confession. The jury was able to assess defendant’s answers to questions and his narrative of the events of the evening the crime occurred. Defendant’s expert witnesses reached different conclusions regarding defendant’s sanity at the time of the crime. Dr. Rittner had not examined defendant until five months after the crime and Dr. Lubin did not examine defendant at all. The jury heard Dr. Rittner testify that he considered defendant insane at the time of the crime, but sane just shortly before the crime and shortly after it. The people who lived with defendant did not ascribe any bizarre behavior to defendant. In his confessions, defendant described how he had gone home after the murder, put his bloody clothing in a bag, taken a shower and gone to bed. The following day defendant laundered the clothing. To a rational fact finder this behavior would not seem consistent with insanity.

For the foregoing reasons, I respectfully concur.


author: DIXON, Chief Justice.

text:
    STATE of Louisiana v. John M. SMITH. STATE of Louisiana ex rel. John M. SMITH v. STATE of Louisiana.
    Nos. 81-KA-0221, 81-KH-1475.
    Supreme Court of Louisiana.
    Nov. 16, 1981.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist: Atty., Stephen Laiche, Thomas Chester, Louise Korns, J. Kevin McNary, Asst. Dist. Attys., for plaintiff-appellee in 81-KA-0221 and for plaintiff-respondent in 81-KH-1475.
    James C. Lawrence, and Craig Colwart of Orleans Indigent Defender Program, New Orleans, for defendant-appellant in 81-KA-0221 and for defendant-relator in 81-KH— 1475.
   DIXON, Chief Justice.

Defendant, John M. Smith, was charged by bill of information with the crime of simple burglary in violation of R.S. 14:62. Smith initially pleaded not guilty. On April 23, 1980 he withdrew his former plea and pleaded guilty as charged in conjunction with an agreement entered into with the state. The terms of the agreement are embodied in the transcript of the April 23, 1980 proceedings. Defendant agreed to plead guilty to the crime charged with the understanding that he would receive a suspended sentence. However, defendant was aware that the state reserved its right to subsequently multiple bill him. If in fact the state did file a multiple bill against Smith, the agreement provided that Smith could withdraw his former guilty plea and enter a plea of not guilty, thereby forcing the state to prove its case against him. This is exactly what happened.

On April 25, 1980 defendant was sentenced to eighteen months. The sentence was suspended and defendant placed on active probation. The state filed a multiple bill against defendant on June 4, 1980. Smith then filed a motion to withdraw his guilty plea which was granted by the trial judge. After a trial by jury, defendant was convicted of attempted simple burglary under R.S. 14:27 and 14:62. On September 23, 1980 the court found defendant guilty of being a triple offender within the provisions of R.S. 15:529.1 and sentenced him to six years with credit for time served. Defendant appealed his conviction, urging that he was placed in double jeopardy because he was sentenced twice for the same crime.

While his appeal was pending, Smith filed a pro se habeas corpus application complaining that he was permitted to withdraw his guilty plea after sentence had been imposed and was later tried by jury, convicted and sentenced to six years. The application was granted and consolidated with his appeal.

Defendant’s contention that his conviction and sentence of six years constitutes double jeopardy is incorrect. Double jeopardy does not attach when a defendant himself moves to set aside his conviction. C.Cr.P. 591; cf., La.Const., art. 1, § 15 (1974).

The issue in this case is whether the trial judge exceeded his authority under C.Cr.P. 559 in permitting defendant to withdraw his guilty plea after sentence had been imposed. A trial court may allow a guilty plea to be withdrawn at any time before sentence. C.Cr.P. 559. However, a trial court may only set aside a plea and sentence when the facts surrounding the guilty plea render it constitutionally deficient. State ex rel. Clark v. Marullo, 352 So.2d 223 (La.1977). In that case, the defendant pleaded guilty to armed robbery and was sentenced to five years. He subsequently learned that, contrary to a pre-plea agreement, the state planned to enhance his sentence as a multiple offender. On motion of the defendant, the trial court found that the multiple billing violated the plea bargain and set aside the guilty plea and sentence. After a jury trial, the accused was convicted and sentenced to thirty-three years. We held that the trial court acted properly in vacating the guilty plea and setting aside the original sentence where the state had breached the terms under which the plea was entered by multiple billing the defendant.

In our more recent decision, State v. Banks, 383 So.2d 1009 (La.1980), we concluded that the ruling of the trial judge allowing Banks to withdraw his guilty plea after sentence had been imposed was improper. We observed in a footnote that the record was silent as to the reason the defendant was permitted to withdraw his guilty plea. Thus, Banks did not address the situation presented in the instant case. In this case, Smith himself requested that his previous guilty plea be withdrawn and the eighteen month sentence vacated. In contrast to Banks, it is evident from the record that the terms of the pre-plea arrangement specifically provided that the state could file a multiple bill against Smith and that, if the state did so, Smith would be granted the option of withdrawing his guilty plea. There is nothing in the record to indicate that Smith did not enter into the agreement voluntarily or without knowledge of its terms, nor does defendant raise this contention in brief.

We hold that where it is clear from the record the accused himself requested through a post conviction motion that his guilty plea be withdrawn in accordance with the terms of a pre-plea agreement, the trial court may properly withdraw the former plea and vacate the sentence. Since in this situation the trial court is acting pursuant to its post conviction jurisdiction, C.Cr.P. 559 is inapplicable and cannot serve to insulate the defendant from an enhanced sentence.

For these reasons, defendant’s conviction and sentence of six years are affirmed.

      Judges Remy Chiasson, Wallace A. Edwards and Elmo E. Lear, of the First Circuit, participated in this decision as Associate Justices Ad Hoc, joined by Chief Justice Dixon and Associate Justices Marcus, Blanche and Lemmon.

      . C.Cr.P. 924.1 provides that a post conviction relief application shall not be entertained while a direct appeal is pending. We will treat the application as a pro se brief.

      . C.Cr.P. 559 provides:
      ‘The court may permit a plea of guilty to be withdrawn at any time before sentence.
      The court shall not accept a plea of guilty of a felony within forty-eight hours of the defendant’s arrest. When such a plea has been accepted within the forty-eight hour period, the court, upon a motion filed by the defendant within thirty days after the plea was entered, shall set aside the plea and any sentence imposed thereon.
      When a plea of guilty has been withdrawn or set aside, the plea and the facts surrounding its entry shall not be admissible in evidence against the defendant at a trial of a case.”

      . We noted in our opinion that an anomaly is created by strict application of C.Cr.P. 559 in that while a trial judge does not have jurisdiction to allow the withdrawal of a guilty plea through ordinary proceedings, he does have that authority if the same request be made through application for habeas corpus as a post conviction remedy.


author:
E. L. GUIDRY, Jr., Justice Ad Hoc.
     CALOGERO, Justice, DENNIS, Justice,

text:
    STATE of Louisiana v. Ronald O’Shea BOWDEN, III.
    No. 81-KA-1376.
    Supreme Court of Louisiana.
    Nov. 16, 1981.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Tommy Adkins, Dist. Atty., Dan J. Grady, III, Asst. Dist. Atty., for plaintiff-appellee.
    R. Wayne Smith of Walker, Holstead & Smith, William S. Carter, Jr. of Dawkins, Coyle & Carter, Robert W. Sharp, Jr. of Sharp & McVea, Ruston, for defendant-appellant.
   E. L. GUIDRY, Jr., Justice Ad Hoc.

Defendant in this case appeals from his conviction and sentence for the crime of armed robbery. In a companion matter entitled State of Louisiana v. Ronald O’Shea Bowden, our docket No. 81-KA-1377, defendant appeals from his conviction and sentence for the crime .of forcible rape. Both offenses arise out of the same incident and the matters were consolidated on appeal for purposes of argument. We decide the issues presented in both cases in this opinion but render a separate decision in the matter entitled State of Louisiana v. Ronald O’Shea Bowden, 406 So.2d 1325, our docket No. 81-KA-1377.

On December 31, 1979, defendant, Ronald O’Shea Bowden, III, was arrested for the aggravated rape, armed robbery, and attempted first degree murder of a Ruston, Louisiana woman. Upon discovering that the defendant was a juvenile (Bowden was 15 years of age at the time of the commission of the offenses), investigating officers brought the defendant before the Ruston City Juvenile Court where the juvenile judge, after hearing the evidence, concluded that there existed adequate grounds for the continued detention of the defendant. Shortly thereafter, the State filed a motion to transfer the matter to the District Court. A transfer hearing was conducted on January 3, 1980. As a result of this hearing all charges against Bowden were ordered transferred to the District Court where the juvenile defendant could be tried as an adult. Subsequent to this transfer hearing, the State, recognizing the doubtful validity thereof, moved for an order rescinding the juvenile court’s prior order of transfer and for a dismissal of the transfer proceeding. The State, in brief and argument to this court, admits that an order was subsequently granted dismissing this transfer proceeding.

On March 10, 1980, the Lincoln Parish Grand Jury returned an indictment charging the defendant with aggravated rape, a violation of LSA-R.S. 14:42. On April 11, 1980, the defendant was formally arraigned in District Court on the aggravated rape charge and entered a plea of not guilty and not guilty by reason of insanity. Thereafter, the District Court conducted a sanity hearing after which the trial judge concluded that the defendant was competent to stand trial. Trial of the defendant on the aggravated rape charge was set for November 10, 1980. On the date set for trial, defense counsel moved to quash the indictment urging that under the 1979 amendment to Article 5, Sec. 19 of the 1974 Louisiana Constitution the District Court had no jurisdiction over persons under the age of seventeen. The trial court overruled defendant’s motion, whereupon defendant moved to stay the proceedings so that he could petition this Court for remedial writs. Defendant’s motion to stay was granted and the date for trial was subsequently moved to February 2, 1981. We subsequently denied writs. See State v. Bowden, 395 So.2d 810 (La.1980).

On January 30, 1981, the State filed with the District Court, sitting as a juvenile court, a bill of information charging Bow-den with armed robbery and attempted second degree murder. Simultaneously, the State filed a petition with the juvenile court requesting that the defendant be transferred to the jurisdiction of the District Court for trial as an adult on the armed robbery charge. A transfer hearing was then held and the State’s petition for transfer was granted. Following the transfer hearing, the juvenile court heard and accepted the defendant’s guilty plea to the charge of attempted second degree murder. Subsequently, the District Court convened to address the armed robbery charge and the aforementioned grand jury indictment charging the defendant with aggravated rape. The State then filed a bill of information with the District Court formally charging the defendant with armed robbery. Thereafter, Bowden entered a guilty plea to the armed robbery charge and on the aggravated rape indictment, defendant pled guilty to the lesser charge of forcible rape in accordance with plea negotiations. The District Court accepted Bowden’s guilty pleas subject to a specific reservation of his right to question the District Court’s jurisdiction on appeal.

On March 27, 1981, following a pre-sen-tence investigation, Bowden was sentenced to serve 40 years at hard labor without benefit of probation, parole, or suspension of sentence in connection with the forcible rape conviction and 50 years at hard labor without benefit of probation, parole, or suspension of sentence on the armed robbery conviction, the sentences to run concurrently-

Defendant appeals both convictions. The following issues are presented on appeal:

(1) Did the District Court err in denying defendant’s motion to quash the indictment charging Bowden with aggravated rape for lack of jurisdiction, in light of the 1979 amendment to Article V, Sec. 19 of the 1974 Louisiana Constitution?

(2a) Did the District Court err in exercising jurisdiction over the juvenile defendant in regard to the bill of information charging Bowden with armed robbery considering the 1979 amendment to Article V, Sec. 19 of the 1974 La.Constitution? and,

(2b) If not, did the record before the juvenile court contain sufficient evidence to justify the transfer of the armed robbery matter to the district court?

Defendant argues that Article V, Sec. 19 of the 1974 Louisiana Constitution as amended by Act 801 of 1979, enacted thirty-one days before the subject crimes were committed and in full force and effect on the date of commission of the subject offenses, prohibited the trial of persons under seventeen years of age as adults in the district court and further mandated that all such persons were required to be tried pursuant to special juvenile procedures established by law. Thus, defendant argues the district court lacked jurisdiction over him at the time of his convictions.

Prior to the 1979 amendment, Article V, Sec. 19 of the 1974 Louisiana Constitution provided as follows:

“Section 19. Except for a person fifteen years of age or older who is alleged to have committed a capital offense or attempted aggravated rape, the determination of guilt or innocence, the detention, and the custody of a person who is alleged to have committed a crime prior to his seventeenth birthday shall be exclusively pursuant to special juvenile procedures which shall be provided by law. However, by law enacted by two-thirds of the elected members of each house, the legislature may (1) lower the maximum ages of persons to whom juvenile procedures would apply and (2) establish a procedure by which the court of original jurisdiction may waive such special juvenile procedures in order that adult procedures would apply in individual cases....”

The constitutional provision above quoted authorized the trial by the district court of juvenile defendants, 15 years of age or older, who were accused of committing a capital crime or the crime of attempted aggravated rape. Thus, Article V, Sec. 19 before the 1979 amendment provided that the State could initiate the prosecution of a juvenile defendant who had reached the minimum age and who was accused of one or more of the aforesaid crimes directly in the district court without any proceedings whatsoever in the juvenile court.

Prior to the commission of the instant offenses by Bowden, Act 801 of 1979 was adopted which amended Article V, Sec. 19 so as to provide:

“Section 19. The determination of guilt or innocence, the detention, and the custody of a person who is alleged to have committed a crime prior to his seventeenth birthday shall be pursuant to special juvenile procedures which shall be provided by law. However, the legislature may (1) by a two-thirds vote of the elected members of each house provide that special juvenile procedures shall not apply to juveniles arrested for having committed first or second degree murder, manslaughter, aggravated rape, armed robbery, aggravated burglary or aggravated kidnapping, and (2) by two-thirds vote of the elected members of each house lower the maximum ages of persons to whom juvenile procedures shall apply, and (3) by two-thirds vote of the elected members of each house establish a procedure by which the court of original jurisdiction may waive special juvenile procedures in order that adult procedures shall apply in individual cases. The legislature, by a majority of the elected members of each house, shall make special provisions for detention and custody of juveniles who are subject to the jurisdiction of the district court pending determination of guilt or innocence.”

One of the effects of the aforesaid amendment was the removal of the State’s authority to initiate the prosecution of juveniles in the district court until enabling legislation was adopted by a two-thirds vote of the legislature pursuant to subparagraph (1) of Article V, Sec. 19.

Defendant contends that the district court obtained no jurisdiction by virtue of the March 10, 1980 grand jury indictment charging him with aggravated rape because when this crime was committed and the grand jury indictment obtained the previous constitutional authority authorizing the initiation of such a prosecution of a juvenile 15 years of age in the district court had been abrogated by the 1979 amendment to Article V, Sec. 19. Additionally, defendant contends that the District Court was without jurisdiction of the aggravated rape indictment, as well as the bill of information charging him with armed robbery, because Act 801 of 1979 amending Article V, Sec. 19 of the 1974 Louisiana Constitution invalidated all pre-existing legislation governing the procedure for waiver of juvenile jurisdiction. The defendant argues that, although the aforesaid amendment empowered the legislature to enact statutory exceptions to the general provision that all persons under the age 17 shall be tried pursuant to special juvenile procedures established by law, the legislature did not do so until the adoption of Act 482 of 1980. Therefore, defendant contends, the district court lacked jurisdiction over him since the subject crimes were committed after the effective date of the constitutional amendment but prior to the adoption of Act 482 of 1980.

Initially, we observe that the 1979 amendment to Article V, Sec. 19 had the effect of invalidating only such laws as were in conflict therewith.

At the time of the commission of the subject offenses LSA-R.S. 13:1570 A(5) provided for the initiation of prosecution in the district court of juveniles, 15 years of age or older, charged with having committed a “capital crime, or a crime defined by any law defining attempted aggravated rape,” and LSA-R.S. 13:1571.1 et seq. (the Juvenile Transfer Act — Act 568 of 1974 as amended by Act 337 of 1975) provided that juvenile defendants, age fifteen years or older, could be tried as adults in the district court provided transfer proceedings were conducted in the juvenile court in accordance with the provisions of LSA-R.S. 13:1571.1. Neither of these statutes, which were enacted prior to the amendment to Article V, Sec. 19 of the 1974 Louisiana Constitution, conflict with the amendment. Quite to the contrary, the amendment specifically provides that by law enacted by two-thirds of the elected members of each house, the legislature may provide that any special juvenile procedures shall not apply to juveniles arrested for having committed aggravated rape and further provides for the legislative establishment of a procedure by which the court of original jurisdiction may waive special juvenile procedure in order that adult procedures apply in individual cases.

As stated by Justice Lemmon in his concurring opinion in State of Louisiana, In the Interest of Ray Mitchell Caldwell, Jr., 386 So.2d 917:

.. the grand jury indictment (aggravated rape) was proper under R.S. 13:1570 (A)(5), which is not in conflict with La. Const.1974, Art. 5, Sec. 19, as amended in 1979, and which was not intended to be affected by the 1979 amendment.
R.S. 18:1570 (A)(5) remained valid and viable in March, 1980, the date of the crime at issue here. Both R.S. 13:1570 (A)(5) and R.S. 13:1571.1 (the transfer statute) drew their constitutional basis from the former La.Const. 1974, Art. 5, Section 19 (before the 1979 amendment) and neither statute is in conflict with Section 19, as amended. Indeed, one evident purpose of the 1979 amendment was to expand the legislature’s authority to provide for ‘automatic’ jurisdiction of district courts for certain crimes, thereby eliminating the need for transfer proceedings. Moreover implied repeal is not favored. Liter v. City of Baton Rouge, [258 La. 175] 245 So.2d 398 (La.1971). ...”

Were this court to adopt defendant’s argument, it would create an incongruous situation where for the period of November 30, 1979 through September 9, 1980 (the effective date of the amendment to LSA-R.S. 13:1570 and 1571.1) a juvenile defendant could not be tried in district court regardless of the crime alleged to have been committed and the circumstances surrounding same. Clearly, such a “hiatus” in the law was not intended by the Legislature or the people of this State.

In sum, we conclude that the adoption of the 1979 amendment to Art. V, Section 19 of the Louisiana Constitution of 1974 did not have the effect of abrogating the provisions of LSA-R.S. 13:1570 and 1571.1 et seq., in effect on the date of the commission of the instant offenses, nor did the adoption of the amendment require a re-enactment of non-conflicting statutes enacted pursuant to the former Section 19’s grant • of authority.

The prosecution of defendant for the crime of aggravated rape was initiated in the district court pursuant to grand jury indictment. This was procedurally proper, the district court being vested with jurisdiction under the provisions of LSA-R.S. 13:1570 (A)(5). Accordingly, the conviction and sentence of defendant for the crime of forcible rape will be affirmed.

The instant record reflects significantly different procedural circumstances by which the defendant was convicted of armed robbery by the district court. Since we have concluded that Act 801 of 1979 did not abrogate the pre-existing legislation governing the trial of juveniles as adults by the district court, we must now determine if the defendant was properly transferred to the jurisdiction of the district court for trial pursuant to the bill of information charging him with armed robbery.

As stated previously, the initial transfer order issued by the Ruston City Juvenile Court on January 3, 1980 pertaining to all three original criminal charges filed against Bowden was rescinded and the petition dismissed. However, on January 30, 1981, subsequent to the adoption of Act 801 of 1979 as well as after the enactment of Act 482 of 1980, which amended the procedure for transfer hearings, the State filed with the District Court, sitting as a juvenile court, a petition requesting that the defendant be transferred to the jurisdiction of the district court for trial as an adult on the armed robbery charge. The record reflects that a transfer hearing was held and the matter was subsequently transferred to the district court in accord with the provisions of LSA-R.S. 13:1571.1

Defendant contends that under the provisions of LSA-R.S. 13:1571.1 insufficient evidence was presented at the transfer hearing to justify a transfer to the district court. Specifically, defendant argues that the transfer proceedings are invalid because there is no evidence in the record to support the juvenile court’s conclusion that the defendant is not amenable to treatment or rehabilitation through facilities available to the juvenile court. We disagree.

In this connection the juvenile court judge stated as follows:

“Let the record show that the Court has examined the transcripts. That the Court finds that there are reasonable grounds to believe that this juvenile is not amenable to treatment or rehabilitation through facilities available to the Juvenile Court. The Court determines that any treatment or rehabilitation of this juvenile would have to be of a stronger and more lengthy time and a more restricted environment, a more disciplined type of environment than could be afforded by the facilities available in the juvenile procedure and the Juvenile Court system and the Court also finds that there is probable cause shown in the transcripts to believe that this juvenile has committed the offense of armed robbery and which is an offense, one of the most serious offenses, and that the record shows that that offense and the others related to it and that occurred — that were committed or alleged to have been committed at this time or on this same victim, were of such a heinous nature as to be, if the defendant is guilty or the juvenile is guilty, to warrant such punishment beyond the facilities of the juvenile system to inñict or to impose and, therefore, the Court orders the transfer of these proceedings, the armed robbery proceeding against this juvenile to the District Court.”

In determining whether or not there should be a waiver of juvenile jurisdiction, our courts have never attempted to prescribe criteria, specific standards or the quantum of evidence necessary to support such a conclusion. Rather, our courts have consistently held that the determination of whether or not a juvenile defendant is amenable to treatment within our juvenile system is a matter which lies within the sound discretion of the juvenile court judge. State in the Interest of Smith, 359 So.2d 1271 (La.1978). In the instant case the juvenile court judge had before him all of the transcripts of the evidence taken at the prior hearings as well as the defendant’s juvenile record. Further, the record reflects that at the time the defendant committed the instant offenses he was on Christmas furlough from Louisiana Training Institute.

Although, the juvenile court judge makes no specific mention of the defendant’s age and maturity he obviously took these factors into consideration in reaching the conclusion to waive juvenile jurisdiction. The juvenile court judge had the opportunity to observe the defendant and ascertain his level of maturity and sophistication. Quite obviously, the juvenile court judge, being fully familiar with the facilities offered by Louisiana’s juvenile justice system, concluded that because of the nature and the seriousness of the offenses charged defendant was not amenable to rehabilitation and treatment within that system.

In sum, we conclude that the reasons advanced by the juvenile court judge for his conclusion are adequate, well-reasoned and fully supported by the evidence in the record.

For the reasons assigned defendant’s conviction and sentence are affirmed.

AFFIRMED.

CALOGERO, J., dissents in part, concurs in part and assigns reasons applicable to the consolidated cases, # # 81-KA-1376 and 81-KA-1377.

DENNIS, J., dissents in part, concurs in part and assigns reasons in Nos. 81-KA-1376 and 81-KA-1377.

CALOGERO, Justice,

concurring in part, dissenting in part.

I concur in affirming the conviction for armed robbery (No. 81-KA-1376). However, I dissent from affirming the conviction for forcible rape (No. 81-KA-1377, 406 So.2d 1325 (La.1981)). The latter case should be remanded to the juvenile court where the state can file a petition for transfer and resume the prosecution.

In the transfer hearing conducted regarding the charge of armed robbery, there was a proper finding that defendant was not amenable to treatment or rehabilitation through facilities available to the juvenile court. I also agree with the majority position, although the matter is not without some doubt, that the old juvenile transfer law was not abrogated by the 1979 Constitutional amendment. The old transfer law should be allowed to continue to facilitate transfer of juveniles determined to be beyond the scope of the juvenile system into the adult criminal courts during the nine months between the effective dates of the constitutional amendment and the new transfer statute. Otherwise, we would have a complete moratorium during which all juveniles, regardless of their history or the crimes with which they were charged, could only be subject to the special handling of the juvenile justice system. I agree with the majority that such could not have been the intention of the Legislature and the people in passing the Constitutional change.

However, I am not in agreement with the treatment given the aggravated rape charge out of which the forcible rape conviction was obtained. The old jurisdiction statute, La.R.S. 13:1570(A)(5), represented no more than a restatement of the former constitutional provision regarding outset jurisdiction of the district court over juveniles 15 years of age who were charged with aggravated rape. That constitutional provision was repealed, and the replacement provision mandates that all juveniles fall within the jurisdiction of juvenile court except where the Legislature particularly provides otherwise for juveniles of a certain'' age who are charged with enumerated crimes. The clear language of this new constitutional provision placed outset jurisdiction over all juveniles in juvenile court unless and until the Legislature were to choose to provide otherwise. The Legislature did not provide otherwise until some nine months following the effective date of the new constitutional provision. Even when the Legislature did act, it did not remove from the outset jurisdiction of juvenile court all the classes of juveniles it was constitutionally permitted to remove. The majority relies upon this later passed legislation to hold that in the interim between the effective date of the new constitutional provision and the effective date of the legislation, the outset jurisdiction for a 15 year old charged with aggravated rape was in district court.

The chronology and essence of the constitutional provisions and statutes forming the basis of this controversy are here set forth:

1974 Constitution, Article V, § 19 (before amendment) — Juveniles fifteen years of age or older charged with capital offenses or attempted aggravated rape were in the adult criminal court system from the initiation of prosecution. In State ex rel. Coco, 363 So.2d 207 (La.1978), we held that the phrase “capital offenses” included aggravated rape although the United States Supreme Court had invalidated the death penalty for that crime. Other juveniles under the age of seventeen were subject to juvenile court jurisdiction, except that the Legislature could lower the maximum age of persons to whom the juvenile procedures would apply and could establish procedures for transferring individual juveniles into the adult court.
La.R.S. 13:1571.1 (effective Jan. 1, 1975) —Juveniles over the age of fifteen could be tried as adults if a petition seeking transfer of the juvenile into the adult system was filed, and the juvenile court judge made certain findings about the juvenile and his past history. In the absence of the required findings, the juvenile remained under the jurisdiction of the juvenile justice system. Those juveniles enumerated in Article V, section 19 of the 1974 Constitution, of course, fell immediately to the jurisdiction of the regular criminal court upon the initiation of prosecution.
Amendment of Article V, § 19 of the 1974 Constitution (effective Nov. 30, 1979)— All juveniles under the age of seventeen shall be subject to special juvenile procedures. The amendment reserved to the Legislature the right to except certain classes of juveniles from juvenile court jurisdiction and provide that these individuals be subject from the outset to the jurisdiction of the adult criminal justice system.. The amendment also allowed the Legislature to provide for the transfer of some other juveniles into the adult system.
La.R.S. 13:1570(A)(5) (effective Sept. 12, 1980) — The amended jurisdiction statute, passed pursuant to the authorization of the 1979 constitutional amendment, placed oufset jurisdiction over juveniles over a certain age and charged with having committed enumerated crimes in the adult court system and subjected these juveniles to adult criminal procedures.

I question under what authority, during the nine month interval between the effective date of the constitutional amendment and the effective date of the new jurisdiction statute, a juvenile over fifteen and charged with aggravated rape could be subject to the jurisdiction of the adult criminal court. The majority says that the constitutional change intended to leave jurisdiction over juveniles over the age of fifteen and charged with aggravated rape in the adult system. It bases this conclusion on the fact that several months later the Legislature passed an act which did just this. Suppose, however, that the Legislature had not so acted. Surely then the majority position could not be the same. Is this therefore some sort of ex post facto application of that law? Also consider, for example, the fifteen year old charged with manslaughter. Under the old constitutional provision, this individual began his sojourn in the juvenile court system and entered the adult system only after a transfer hearing at which certain findings had been made. Under the statutory provision enacted pursuant to the constitutionalxchange, the fifteen year old charged with manslaughter is subject to the outset jurisdiction of criminal district court. During the nine month interim until the new jurisdiction statute became effective, surely then this person was not subject to the jurisdiction of the adult system. How then can we treat differently during that nine month interval the juvenile charged with aggravated rape and the juvenile charged with manslaughter when the new statute creating outset jurisdiction in criminal district court applies equally to both?

I simply see no way, under logical constitutional and statutory construction, to subject juveniles 15 years of age or older charged during this interval with aggravated rape to the outset jurisdiction of the district court when the constitutional provision which had allowed this had been replaced by one which did not, although the latter gave the Legislature permission to do so if it later chose. The statutory implementation of this new constitutional provision had not been enacted at the time of the crime with which this defendant is charged.

DENNIS, Justice,

dissenting in part and concurring in part.

I respectfully dissent in part and concur in part for the reasons set forth by Justice Calogero in his excellent separate opinion.

There clearly was no intention by anyone, either the legislature or the people, to use the prior statute to carry into effect the new constitutional concept. • Otherwise, there would have been no need for the constitutional amendment to provide that “the legislature may * * * by a two-thirds vote of the elected members of each house provide that special juvenile procedures shall not apply to juveniles arrested for having committed . . . aggravated rape * * * >>

       Judges E. L. Guidry, Jr. and G. William Swift, Jr. of the Court of Appeal, Third Circuit and Judge Robert J. Klees of the Court of Appeal, Fourth Circuit, participated in this decision as Associate Justices ad hoc, joined by Associates Justices Pascal F. Calogero, Jr., James L. Dennis, Jack C. Watson and- Harry T. Lemmon.

      . Although a literal interpretation of Article V, Section 19 of the 1974 Louisiana Constitution provided for the initiation of prosecution in the district court only when juveniles of the minimum age were accused of committing a capital crime or the crime of attempted aggravated rape, this Court concluded in State ex rel. Coco, 363 So.2d 207 (La.1978) that such an interpretation would create an incongruous situation wherein the more serious offense of aggravated rape would be relegated to the jurisdiction of the juvenile court while the lesser included offense of attempted aggravated rape would fall to the district court wherein adult procedures would apply. This court concluded in Coco, supra, that the intent of the drafters of the constitutional provision was to include aggravated rape within the jurisdiction of the district court.

      . See footnote (1).

      . In State in the Interest of Hunter, 387 So.2d 1086 (La.1980), this court declared Act 460 of 1978 amending LSA-R.S. 13:1571.1 unconstitutional. However, in Hunter we specifically held that the aforesaid act which purported to repeal ail former versions of LSA-R.S. 13:1571.-1, by amending and re-enacting the statute in a manner violative of due process and state constitutional requirements, was ineffective to repeal the former juvenile transfer statute.

      . LSA-R.S. 13:1571.1 states:
      “A. Effective January 1, 1975, after a petition has been filed alleging delinquency based on conduct which is designated a crime or public offense by the statutes of the United States, of this state, or by ordinance of local political subdivisions exercising general governmental functions, the court, before hearing the petition on its merits, may transfer the alleged offender for prosecution to the appropriate court exercising criminal jurisdiction if the district attorney, the alleged offender, or the court on its own motion, files a transfer petition and the following conditions are met:
      (1) The child has attained the age of fifteen years or more at the time of the alleged conduct;
      (2) A hearing on whether the transfer should be made is held in conformity with R.S. 13:1571.2;
      (3) Notice in writing of the time, place and purpose of the hearing is given to the child and his parents, tutor, or other custodian at least ten days before the hearing; and
      (4) The court finds that there are reasonable grounds to believe that the child is not amenable to treatment or rehabilitation through facilities available to the juvenile court.
      (5) The child has previously been adjudicated a delinquent by the commission of any of the following offenses: second degree murder, manslaughter, negligent homicide, simple rape, armed robbery, aggravated battery, aggravated burglary, aggravated arson and aggravated kidnapping.
      B. The transfer terminates the jurisdiction of the juvenile court over the child with respect to the delinquent acts alleged in the petition.
      C. No child, either before or after attaining the age of seventeen shall be prosecuted in criminal court for an offense which was allegedly committed by the child who had not then attained the age of seventeen unless the case has been transferred to criminal court as provided herein, or except as otherwise provided by law.
      D. Notwithstanding any provision of law to the contrary when an offender fifteen years of age or older is charged with armed robbery or a crime punishable by life imprisonment, and a petition is filed in the juvenile court requesting the transfer of the offender to a district court of general criminal jurisdiction in accordance with R.S. 13:1571.1 et seq., should the juvenile court approve the petition for transfer the juvenile court shall order such transfer without a previous adjudication of delinquency and the provisions of Paragraph 5 of Subsection A of this Section shall not be applicable in such instance.”

      . LSA-R.S. 13:1570 (A)(5) provides:
      “Except as otherwise provided herein, the court shall have exclusive original jurisdiction in proceedings:
      A. Concerning any .child whose domicile is within the parish or who is found within the parish:

      (5) Who violates any law or ordinance, except a child who, after having become fifteen years of age, is charged with having committed a capital crime, or a crime defined by any law defining attempted aggravated rape; provided that once such a child has been actually charged with a capital crime, armed robbery, or attempted aggravated rape, the district court shall retain jurisdiction over his case, even though the child pleads guilty to, or is convicted of, a lesser included offense: and a plea to, or conviction of, a lesser included offense shall not revest the juvenile court with jurisdiction of such a child.”


author: E. L. GUIDRY, Jr., Justice Ad Hoc. DENNIS, Justice,

text:
    STATE of Louisiana v. Ronald O’Shea BOWDEN, III.
    No. 81-KA-1377.
    Supreme Court of Louisiana.
    Nov. 16, 1981.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Tommy Adkins, Dist. Atty., Dan J. Grady, III, Asst. Dist. Atty., for plaintiff-appellee.
    R. Wayne Smith, of Walker, Holstead & Smith, William S. Carter, Jr., of Dawkins, Coyle & Carter, Robert W. Sharp, Jr., of Sharp & McVea, Ruston, for defendant-appellant.
   E. L. GUIDRY, Jr., Justice Ad Hoc.

For the reasons assigned in the companion matter entitled State of Louisiana v. Ronald O'Shea Bowden, III, 406 So.2d 1316, our docket No. 81 — KA-1376, the defendant’s conviction and sentence for the crime of forcible rape is affirmed.

AFFIRMED.

CALOGERO, J., dissents in part, concurs in part for reasons assigned in the consolidated case 81-KA-1376.

DENNIS, J., dissents in part and concurs in part with reasons.

DENNIS, Justice,

dissenting in part and concurring in part.

I respectfully dissent in part and concur in part for the reasons set forth by Justice Calogero in his excellent separate opinion.

There clearly was no intention by anyone, either the legislature or the people, to use the prior statute to carry into effect the new constitutional concept. Otherwise, there would have been no need for the constitutional amendment to provide that “the legislature may * * * by a two-thirds vote of the elected members of each house provide that special juvenile procedures shall not apply to juveniles arrested for having committed . . . aggravated rape * * * »’

       Judges E. L. Guidry, Jr. and G. William Swift, Jr. of the Court of Appeal, Third Circuit and Judge Robert J. Klees of the Court of Appeal, Fourth Circuit, participated in this decision as Associate Justices ad hoc, joined by Associate Justices Pascal F. Calogero, Jr., James L. Dennis, Jack C. Watson and Harry T. Lemmon.