author: STOKER, Judge.

text:
    STATE of Louisiana, Plaintiff-Appellee, v. Brian BROUSSARD, Defendant-Appellant.
    No. CR83-884.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 10, 1984.
    Thomas DeJean, Opelousas, for defendant-appellant.
    Morgan J. Goudeau, III, Dist. Atty., Donald Richard, Asst. Dist. Atty., Opelousas, for plaintiff-appellee.
    Before FORET, STOKER and KNOLL, JJ.
   STOKER, Judge.

Defendant, Brian Broussard, pleaded guilty to a charge of armed robbery and was sentenced to fifteen years in the custody of the Department of Corrections without benefit of probation, parole, or suspension of sentence.

Although he argues on appeal that his sentence is excessive, no assignment of errors was filed in the trial court nor does the record reflect that any objection was raised regarding excessiveness of sentence. Therefore, the issue has not been preserved for review. State v. Zeno, 322 So.2d 136 (La.1975); State v. Cox, 369 So.2d 118 (La.1979). Accordingly, this ease is reviewable only for errors discoverable by a mere inspection of the pleadings and proceedings and without inspection of the evidence.

We note that defendant entered into a plea agreement in which the trial judge agreed to give a sentence of not more than fifteen years at hard labor without benefit of probation, parole, or suspension of sentence. The trial judge chose to impose the maximum sentence agreed to. A sentence agreed to as a consequence of a plea bargain cannot be appealed as excessive. State v. Bell, 412 So.2d 1335 (La.1982).

Finding no errors on the face of the record, we affirm the defendant’s conviction and sentence.

AFFIRMED.


source: Caselaw Access Project

author: YELVERTON, Judge.

license: Public Domain

text:
    STATE of Louisiana, Plaintiff-Appellee, v. Isaac D. McDOWELL, Defendant-Appellant.
    No. CR83-888.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 10, 1984.
    Edward A. Kaplan, Alexandria, for defendant-appellant.
    Gerald Henderson, Camille Giordano, Asst. Dist. Attys., Alexandria, for plaintiff-appellee.
    Before GUIDRY, LABORDE and YEL-VERTON, JJ.
   YELVERTON, Judge.

Isaac D. McDowell, having pled guilty to forcible rape reduced from aggravated rape, was sentenced to 20 years at hard labor, two years of which was to be served without benefit of parole, and he appeals the sentence claiming it was excessive. This is his only assignment of error. We find no merit to it and we affirm the sentence.

On November 25, 1982, defendant, then 29 years old, raped a seven year old boy. While in the woods with the victim, the defendant forced him to the ground, pulled the boy’s pants to his ankles and performed anal sexual intercourse on him. He then gave the child a dollar, warned him not to tell anyone, and let him go. The boy immediately told his mother. A medical examination confirmed the rape. A Grand Jury-returned an indictment charging aggravated rape (LSA-R.S. 14:42), a crime which mandates a sentence to life imprisonment without benefit of parole, probation or suspension. Under a plea bargain the defendant pleaded guilty to forcible rape (LSA-R.S. 14:42.1) a crime which provides a sentence of not less than two nor more than 40 years, two of which must be without benefit of parole, probation or suspension of sentence. After obtaining and reviewing a presentence report, the trial judge imposed a sentence of 20 years imprisonment, with two years to be served without benefit of parole.

This sentence does not violate the constitutional prohibition against excessive punishment. As noted in State v. Telsee, 425 So.2d 1251 (La.1983) and State v. Lathers, 444 So.2d 96 (La.1983), generally the sentences for forcible rape reviewed by the Supreme Court have ranged from 10 to 25 years, with parole excluded from two to eight years. The Supreme Court ordered a sentence of 25 years for the 17 year old first offender Telsee, and remanded Lathers, who was 21, for resentencing with a strong suggestion that he ought to get about what Telsee did. In State v. Nash, 427 So.2d 1241 (La.App. 2nd Cir.1983), a 25 year sentence, five of which was to be served without benefit of parole, imposed on a 26 year old defendant who was a first felony offender, was found not to be excessive. The 20 year sentence in the instant case, with only two years ordered served without parole, thus compares favorably with the sentences imposed for the same crime by other courts in this State.

There is nothing about this sentence that should take it out of the norm, considering the nature of the crime and the character and propensities of the offender. Defendant’s guilty plea was an admission that a rape occurred, and, since the victim was only seven years of age, defendant’s conduct was actually an aggravated rape, which carried a mandatory life sentence at hard labor without benefit of parole. By plea bargaining, defendant obtained a significant reduction in his potential exposure to imprisonment, and his actual sentence was only half of the reduced exposure, with the minimum amount to be served without parole. This factor was considered by the trial court when the sentence was imposed and it is a proper consideration in determining whether the sentence was excessive. State v. Landos, 419 So.2d 475 (La.1982).

The trial judge considered the mitigating factors of the defendant’s age and the absence of a criminal record. He also mentioned the aggravating factor of serious psychological damage suffered by the victim. Noting that the defendant continued to maintain that he had done nothing harmful, despite his guilty plea, the trial judge stated that he felt a lesser sentence would deprecate the seriousness of the offense.

The trial court’s well-articulated compliance with the sentencing guidelines of C.Cr.P. art. 894.1, fully supports the sentencing choice.

The sentence is affirmed.

AFFIRMED.


author: GUIDRY, Judge.

text:
    STATE of Louisiana v. Paul Quint RICHARD.
    No. CR83-979.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 10, 1984.

      Sherman Stanford, Opelousas, for defendant-appellant.
    Morgan J. Goudeau, III, Dist. Atty., David Miller, Asst. Dist. Atty., Opelousas, for plaintiff-appellee.
    Before GUIDRY, LABORDE and YEL-VERTON, JJ.
   GUIDRY, Judge.

Paul Quint Richard was charged with the crime of armed robbery, a violation of La. R.S. 14:64. The defendant entered a plea of guilty and a pre-sentence investigation was ordered by the court. The trial judge sentenced the defendant to 18 years at hard labor with the Department of Corrections. Defendant appeals the sentence imposed.

On October 20, 1982, while armed with a pistol, defendant entered a Little General Store in St. Landry Parish and robbed Gwen White, the night cashier, of approximately $40.00 at gun point.

On appeal, defendant contends that the sentence imposed by the trial judge violates the U.S. Constitution’s prohibition against cruel and unusual punishment. Defendant also contends that the sentence violates the Louisiana Constitution’s prohibition against excessive punishment. Defendant further contends that the court failed to comply with the statutory sentencing criteria mandated by La.C.Cr.P. Art. 894.1.

Under both our federal and state constitutions, the imposition of punishment which is deemed cruel or unusual is prohibited. U.S. Const. 8th Amendment; La. Const.1974, Art. 1 § 20. The Louisiana Constitution specifically prohibits “... cruel, excessive or unusual punishment.” Although there is no specific prohibition against excessive punishment in the Federal Constitution in determining what is cruel and unusual, excessiveness is a proper consideration. Coker v. Georgia, 433 U.S. 584, 97 S.Ct. 2861, 53 L.Ed.2d 982 (1977). Under both our federal and state constitutions, a sentence is excessive when it is grossly out of proportion to the severity of the offense or is nothing more than the needless imposition of pain and suffering. Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976); State v. Goode, 380 So.2d 1361 (La.1980).

At the sentencing hearing, the trial judge stated that he had refixed sentencing to give defendant additional time to submit mitigating evidence to the court, and that he had considered the material submitted by counsel for defendant in addition to the pre-sentence investigation report. He then permitted counsel for defendant the opportunity to produce additional mitigating evidence. Counsel for defendant submitted no additional evidence but relied on oral argument to the court.

Defendant was sentenced to 18 years at hard labor. The maximum sentence for armed robbery is 99 years; the minimum sentence is five years. Thus, the law provides a wide range of sentences for the crime of armed robbery.

Defendant contends that the record reveals a lack of aggravating circumstances and the presence of mitigating circumstances, in particular, his youth and the fact that he has no prior criminal record. On this basis, defendant urges that the imposition of a sentence of 18 years, which is substantially above the minimum mandated by the legislature, is unconstitutionally excessive.

In particularizing the sentence to the defendant, the trial judge considered the seriousness of the crime, noting that defendant’s conduct involved a serious threat to human life by use of a firearm pointed at the victim. Although defendant correctly points out that, by definition, all armed robberies require the use of force while armed with a dangerous weapon, some instrumentalities are more life threatening than others. La.R.S. 14:2(3). Therefore, the nature or degree of dangerousness of the weapon is a factor which may elevate the seriousness of the crime. The trial judge also stated that he considered as mitigating factors, the defendant’s youth and lack of a prior criminal record. These are the only factors weighing in favor of á lesser sentence which appear of record and which have been argued on appeal.

The judge need not articulate every aggravating and mitigating circumstance, but the record must adequately reflect that he considered the guidelines set forth in La.C.Cr.P. Art. 894.1 in particularizing the sentence to the defendant. State v. Ray, 423 So.2d 1116 (La.1982). In the present case, we find that the trial judge has adequately stated the factual basis for the sentence imposed and provided this court with an adequate basis for review, thus complying with the requirements of La.C. Cr.P. Art. 894.1.

We cannot conclude from this record that the sentence imposed constituted excessive punishment prohibited by La. Const.1974, Art. 1 § 20 and U.S. Const. 8th Amendment. Defendant’s argument that his conduct constitutes the least serious armed robbery imaginable is without merit. Armed robbery is a crime “fraught with danger” to the victim and to others who may be present and it is strongly condemned by our legislature. State v. Douglas, 389 So.2d 1263 (La.1980). Considering the wide range of sentences for armed robbery left to the trial judge’s discretion by the legislature, we do not find the 18 year sentence imposed in this case to be grossly out of proportion to the severity of the committed offense. Even considering defendant’s youth, the record does not re-fleet an abuse of the trial court’s much discretion.

For the above and foregoing reasons, the defendant’s conviction and sentence are affirmed.

AFFIRMED.

      . Defendant was 18 years old at the time of the commission of the crime. Although the trial judge noted defendant’s lack of a prior criminal record, the record does reflect that defendant had a record of delinquency.


author: KNOLL, Judge.

text:
    STATE of Louisiana, Plaintiff-Appellee, v. Fred SIKES, Defendant-Appellant.
    No. CR83-1012.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 10, 1984.

      Patrick L. Durusau, Jena, for defendant-appellant.
    Norris Dale Jackson, Asst. Dist. Atty., Jena, for plaintiff-appellee.
    Before FORET, STOKER and KNOLL, JJ.
   KNOLL, Judge.

Fred Sikes was originally charged by bills of information with attempted first-degree murder, a violation of LSA-R.S. 14:27 and 14:30, and driving while intoxicated, second and third offenses, violations of LSA-R.S. 14:98(C) and (D). As part of a plea bargain, the State dismissed the charge of attempted first-degree murder and filed a new bill of information charging Sikes with aggravated assault, a violation of LSA-R.S. 14:37. Sikes, without an agreement regarding sentencing, entered guilty pleas to the three charges. After receiving a pre-sentence investigation report, the trial judge imposed a six month sentence in the parish jail for driving while intoxicated (second offense), a six month sentence in the parish jail for aggravated assault, and a five year sentence at hard labor for driving while intoxicated (third offense); the fines and court costs were waived; all sentences were ordered to be served consecutively. Sikes appeals asserting that the trial court erred in imposing an excessive sentence for driving while intoxicated (third offense), and in ordering the sentences to be served consecutively. We affirm.

When Sikes entered his guilty pleas and later at his sentencing hearing, it was shown that he pleaded guilty in Caldwell Parish to operating a motor vehicle while intoxicated on July 23, 1982. Also, on April 22, 1983, Sikes was arrested by La-Salle Parish Deputies for driving while intoxicated (second offense).

On May 19, 1983, the Ouachita Parish Sheriffs Office alerted the LaSalle Parish Sheriff’s Office that Sikes was wanted for shooting his wife in West Monroe. LaSalle Parish deputies spotted and stopped Sikes’s truck; he exited his truck, shielded his body partially behind the truck, and pointed a .38 caliber pistol at the deputies. When Sikes failed to respond to the deputies’ orders to surrender his gun, he was shot in the left shoulder and taken into police custody. He was arrested for attempted first-degree murder and driving while intoxicated (third offense).

Sikes claims that his sentence for driving while intoxicated (third offense) is excessive.

The maximum sentence for a violation of LSA-R.S. 14:98(D) (third offense DWI) is imprisonment with or without hard labor for five years and a fine of $1,000. Defendant’s sentence of five years falls within the statutory limits. A sentence within the statutory limits may be reviewed for excessiveness. State v. Sepulvado, 367 So.2d 762 (La.1979). The trial court’s reasons for imposing a particular sentence are an important aid when we review a sentence for excessiveness. State v. Bourgeois, 406 So.2d 550 (La.1981). To insure that each sentence imposed is individualized to the offender as well as to the offense, the trial judge must state for the record the considerations taken into account and the factual basis for his conclusions. LSA-C.Cr.P. Art. 894.1; State v. Little, 377 So.2d 332 (La.1979). Given compliance with C.Cr.P. Art. 894.1, the trial court has wide discretion in the imposition of sentences within statutory limits, and the sentence imposed should not be set aside as excessive in the absence of a manifest abuse of that discretion. State v. Henry, 443 So.2d 657 (La.App. 3rd Cir.1983); State v. Washington, 414 So.2d 313 (La.1982). The penalty imposed must be so disproportionate to the crime committed, in light of the harm caused to society, as to shock our sense of justice. State v. Smack, 425 So.2d 737 (La.1983); State v. Bonanno, 384 So.2d 355 (La.1980). While not controlling, the plea bargain should be considered as a factor in determining whether the sentence imposed is excessive. State v. Smack, supra.

When Sikes was stopped in LaSalle Parish he was intoxicated, armed, and posed an immediate threat to the well-being of the deputies. He was arrested one month before for driving while intoxicated (second offense). This was his third arrest for DWI within ten months. Through plea bargaining the charge of attempted first-degree murder was dismissed and the defendant was charged with the reduced offense of aggravated assault. The trial court conducted a lengthy colloquy with Sikes before it accepted his guilty plea; the record is clear that Sikes was thoroughly advised by the sentencing court of the strong possibility of the court imposing the maximum sentence. Nonetheless, Sikes freely chose to enter guilty pleas to the two DWI charges and the reduced charge of aggravated assault. Therefore, we do not find that the trial judge abused his sentencing discretion in imposing a sentence of five years at hard labor. Accordingly, we do not find Sikes’s sentence excessive.

Sikes also complains that the trial court erred in ordering consecutive sentences. We find that the consecutive sentence for DWI (second) could be imposed because this offense occurred a month pri- or to the other offenses. The trial judge noted that the DWI (third) and the aggravated assault, though taking place on the same day, were not the same transaction and were completely separate matters. The two offenses were unrelated. The use of a gun to assault the police officers stemmed directly from Sikes’s flight from West Monroe. The drunk driving posed a threat directly to the driving public. Accordingly, we find the trial court did not err in imposing consecutive sentences.

DECREE

For the foregoing reasons the convictions and sentences of the defendant, Fred Sikes, are affirmed.

AFFIRMED.


author: LABORDE, Judge.

text:
    STATE of Louisiana, Plaintiff-Appellee, v. Perry Michael HEBERT, Defendant-Appellant.
    No. CR83-1027.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 10, 1984.

      Billy H. Ezell, Atty. at Law, Lake Charles, for defendant-appellant.
    Leonard Knapp,0 Jr., Dist. Atty., Lake Charles, for plaintiff-appellee.
    Before GUIDRY, LABORDE and YEL-VERTON, JJ.
   LABORDE, Judge.

Defendant, Perry Michael Hebert, was charged by' bill of information with the crime of purse snatching, in violation of LSA-R.S. 14:65.1. He pleaded not guilty, and on June 16-17, 1983, was tried before a six-member jury and found guilty. He was sentenced to serve a term of six (6) years in the custody of the Department of Corrections. Defendant appeals, raising two (2) assignments of error which question the constitutionality of a pretrial identification lineup wherein defendant was identified by the victim and a bystander. Finding no irregularities or undue suggestiveness in the lineup procedure, we affirm.

FACTS

The defendant, Perry Michael Hebert, was convicted for snatching a purse belonging to Mrs. Jerelyn Rybicki on November 4, 1982, at the Trailways Bus Depot on the corner of Lawrence and Bilbo Street. Betty Ann Thomas was an eyewitness to the incident. She arrived shortly after 6:30 a.m. and observed the defendant, whom she knew as “Perry”, pacing in front of the depot. Mrs. Rybicki arrived at the depot at approximately 6:40-6:45 a.m. and went to the ticket counter to purchase a ticket for her son. Aside from her son and the ticket agent, only the defendant and a man filling vending machines were present inside the depot. As Mrs. Rybicki stood at the counter, the defendant approached her holding a quarter. She asked him if he wanted change, and he indicated that he did not, but he nevertheless accepted five nickels for his quarter. Mrs. Rybicki noticed that he was a young black man about five feet, seven inches tall, wearing a hard hat, light colored windbreaker, dark pants, and that he had a goatee beard. The defendant then went over to the vending machines where he again approached Mrs. Rybicki, grabbed her wallet (which contained over $300), and escaped toward the door. Mrs. Rybicki attempted to grab the defendant but was pushed or fell away. Ms. Thomas saw the defendant take the wallet and run out the front door of the depot. She then pursued him in her car while the ticket agent pursued him on foot, but the defendant jumped into a yellow Mustang and escaped.

On November 22, 1982, detective Robert Broussard presented Mrs. Rybicki with a photographic lineup, and she identified the defendant as the man who took the wallet. Sergeant Robert Martin also presented the same photographic lineup to Ms. Thomas who identified the defendant as the man who took Mrs. Rybicki’s wallet. Both Mrs. Rybicki and Ms. Thomas positively identified the defendant at the trial as the man who took the wallet.

Defendant was tried by a six-member jury and was unanimously convicted for purse snatching. He was then sentenced to serve six (6) years at hard labor.

PRETRIAL LINEUP IDENTIFICATION

Defendant contends in his first assignment of error that the procedures used for the identification lineup were improper and violated his civil rights. In his second assignment, he avers that the identification was not a positive identification in view of the facts testified to by the state’s witnesses.

Defendant strongly argues in brief that the police erred in conducting a photographic lineup while the defendant was in custody and available for a physical lineup. Defendant contends that a physical lineup should have occurred. He also argues that Mrs. Rybicki’s identification of the defendant in the photographic lineup was not a positive one since she then asked the officer, “How did I do?” and because she stated, “I circled the one I thought it was.”

At the outset, we note that these two arguments have not been properly preserved for review on appeal since the defendant failed to offer any objection during the trial on these grounds. It is settled law that a new basis for an objection cannot be raised for the first time on appeal. State v. Feeback, 414 So.2d 1229 (La.1982); La.C.Cr.P. art. 841. Therefore, the only issue properly before us is whether the photographic lineup was unduly suggestive or prejudicial in light of the evidence presented.

In reviewing an identification procedure, the court must determine whether the procedure was so unnecessarily suggestive and so conducive to an irreparable mistaken identification that the defendant was denied due process of law. State v. Neslo, 433 So.2d 73 (La.1983). Photographs employed in a lineup are unconstitutionally suggestive if they display the defendant so singularly that the witness’ attention is unduly focused upon the defendant. However, strict identity of physical characteristics among the persons depicted in the photo array is not required. All that is required is sufficient resemblance to reasonably test identification. State v. Smith, 430 So.2d 31 (La.1983).

In this instance, the photographic lineup consisted of six color photographs, all depicting a front and side view of the men’s heads. None of the photographs indicate height, weight or size, nor are there any facial distinguishing characteristics displayed. All of the lineup subjects have facial hair, five of which, including the defendant’s photograph, depict facial hair resembling a goatee. It cannot be said that the lineup displayed the defendant so singularly that the witness’ attention was unduly focused upon him.

After thoroughly reviewing the record, we hold that the photographic lineup was not unduly suggestive or singular. Both Mrs. Rybicki and Ms. Thomas positively identified the defendant with reasonable certainty. The facts reveal that they both had ample time and opportunity to view the defendant at the time of the crime. There was no indication that there was inadequate lighting at the time the purse snatching occurred at the counter. Both eyewitnesses indicated that they observed the defendant and paid attention to him prior to the occurrence of the crime. Ms. Thomas had previously seen the defendant in other places. Finally, the time from the date of the crime to the photographic lineup consisted of only eighteen (18) days.

Based on these facts, we find that both Mrs. Rybicki and Ms. Thomas could have positively identified the defendant from a photographic lineup. Further, we hold that the identifications by both eyewitnesses were in fact positive ones and that the lineup was neither unduly suggestive or singular within the constitutional standards. Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972); State v. Stewart, 389 So.2d 1321 (La.1980). Defendant’s assignment of errors are therefore without merit.

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

AFFIRMED.


text:
    STATE of Louisiana, Plaintiff-Appellee, v. Oliver Ray MAYBERRY, Defendant-Appellant.
    No. CR 83-1081.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 10, 1984.
    Writ Denied Dec. 14, 1984.

      W. Simmons Sandoz, Sandoz, Sandox & Schiff, Opelousas, for defendant-appellant.
    Morgan J. Goudeau, III, Dist. Atty., David Miller, Asst. Dist. Atty., Opelousas, for plaintiff-appellee.
    Before FORET, STOKER and KNOLL, JJ.
   KNOLL, Judge.

The defendant, Oliver Ray Mayberry, was convicted by a six-member jury on August 10, 1983, of aggravated battery, a violation of LSA-R.S. 14:34. The trial court sentenced defendant to serve ten years at hard labor. Since a firearm was used in the commission of the offense, the court enhanced defendant’s sentence under LSA-C.Cr.P. Art. 893.1 and LSA-R.S. 14:95.2, and made it consecutive to any other sentence.

Defendant relies upon four assignments of error for a reversal of his conviction and sentence, contending the trial court erred in:

1. Denying the defendant his right to a preliminary examination by upholding the State’s refusal to present evidence at the preliminary examination;
2. Denying the defendant’s motion for a new trial based on a prejudicial remark made by one of the State’s witnesses;
3. Denying the defendant’s motion for a mistrial under LSA-C.Cr.P. Art. 729.5 when one of the State’s witnesses testified to an inculpatory statement made by the defendant without making prior disclosure during discovery; and
4. Allowing the victim to show his bullet wounds and surgical scars to the jury.

We affirm, finding the assignments of error lack merit.

FACTS

On October 25, 1981, the defendant shot Nelson Dugas five times in the stomach. The shooting apparently occurred as a result of an argument among the defendant, the victim, and Patrick Bruno, following the break up of a card game at the victim’s home. The shooting occurred across the street in a home where the defendant and the victim’s sister lived. Immediately after the shooting, the defendant drove the victim to the hospital.

ASSIGNMENT OF ERROR ONE

Through this assignment, defendant contends that since the State failed to present any evidence at the preliminary examination, the State effectively denied defendant’s right to a preliminary examination, and denied defendant the opportunity to listen to adverse witnesses and cross-examine the witnesses.

While a preliminary examination can act as a discovery technique, the law does not treat it as such. The primary function of a preliminary examination is for purposes of determining probable cause for the charged offense or a lesser included offense. LSA-C.Cr.P. Art. 296 provides:

“If the defendant has not been indicted by a grand jury for the offense charged, the court shall, at the 'preliminary examination, order his release from custody or bail if, from the evidence adduced, it appears that there is not probable cause to charge him with the offense or with a lesser included offense. If tKe defendant is ordered held upon a finding of probable cause, the court shall fix his bail if he is entitled to bail. After an indictment has been found by a grand jury, the preliminary examination shall be limited to the perpetuation of testimony and the fixing of bail.

The State need only present a prima facie case. If the evidence does not support probable cause, the court shall order defendant’s release from custody or bail. This is not a judicial dismissal. The State may still proceed against the defendant.

In the present case, the State did not present any evidence at the preliminary examination. The court released defendant from his bail obligations, but defendant was returned to Hunt Correctional Center where he was incarcerated for a previous conviction. While the State may produce witnesses at a preliminary examination, it is under no duty to do so. State v. Sterling, 376 So.2d 103 (La.1979).

Moreover, we find this issue moot. The determination of probable cause in a preliminary examination is laid to rest after trial and conviction. State v. Richardson, 245 So.2d 357 (La.1971).

This assignment of error is without merit.

ASSIGNMENTS OF ERROR TWO AND THREE

By these assignments, defendant contends the trial court erred in denying his motion for a mistrial on grounds of LSA-C. Cr.P. Art. 729.5 (failure to comply with discovery) and for a new trial, based on an allegedly inculpatory and prejudicial remark by one of the State’s witnesses.

The statement complained of was made during the course of the trial when the State asked Officer Joseph Little, on direct examination, the following:

“Q. Would you look at that evidence tag and tell us how that gun came into the State’s possession?
A. The gun did not come in my possession, like I said before, the gun was turned over to the chief and I after that booking and we took the gun and him and brought him to Opelousas and had him booked here in the parish. We did not— he said that was the gun that he had used.

Under the discovery and inspection chapter of the Criminal Code of Procedure, a mistrial is sanctioned if a party fails to comply with discovery. In pertinent part, Article 729.5 provides:

“If at any time during the course of the proceedings it is brought to the attention of the court that a party has failed to comply with this Chapter or with an order issued pursuant to this Chapter, the court may order such party to permit the discovery or inspection, grant a continuance, order a mistrial on motion of the defendant, prohibit the party from introducing into evidence the subject matter not disclosed, or enter such other order, other than dismissal, as may be appropriate.

In the present case, defendant invoked the discovery articles when he filed his motion for discovery. Defendant contends that the above quoted testimony by Officer Little contained an inculpatory statement, allegedly made by defendant that was not included in the State’s answer to the motion for discovery. Defendant argues that it is of no moment that the State filed its answers in good faith since Article 729.5 does not make this distinction. We disagree.

It is clear that the statement by Officer Little was unsolicited and unresponsive to the question propounded. It is not disputed that the Assistant District Attorney was in good faith and had no knowledge of the statement prior to the time it was disclosed by Officer Little on the stand. Under these circumstances, the trial court properly denied the motion for a mistrial. State v. Fisher, 380 So.2d 1340 (La.1980).

Defendant argues that because the trial judge admonished the jury twice to ignore the remark, the statement drew more attention, which further prejudiced the defendant. Defendant contends that the ends of justice require a new trial. LSA-C. Cr.P. Art. 851(5). This is a ground upon which the trial judge may grant a new trial. It presents nothing for this court’s appellate review. State v. Matthews, 354 So.2d 552 (La.1978); State v. Adams, 446 So.2d 355 (La.App. 3rd Cir.1984), writ denied, 449 So.2d 1355.

These assignments of error are without merit.

ASSIGNMENT OF ERROR FOUR

Defendant alleges the trial court erred in allowing the victim to show his bullet wound and surgical scars to the jury. Defendant argues this was an attempt by the State to inflame the jury and unduly arouse the jury’s emotion of prejudice, hostility and sympathy. We disagree.

The State must prove beyond a reasonable doubt that the defendant committed an aggravated battery against the victim with a dangerous weapon, with the intentional use of force or violence. R.S. 14:33; R.S. 14:34. In proving crimes requiring intent, it is not unusual to permit the jury to view wounds, scars, photos and demonstrative evidence that are relevant to show intentional use of force or violence. The use of such evidence is left within the sound discretion of the trial judge, who can decide best whether they serve a proper place in the jury’s enlightenment; his ruling in this respect will not be disturbed in absence of an abuse of discretion. State v. Kelly, 362 So.2d 1071 (La.1978); State v. Sterling, 377 So.2d 58 (La.1979). The ultimate test is whether its probative value outweighs its probable inflammatory effect; the evidence must be relevant, and a balance must be struck between its probative value and its tendency to overwhelm reason and associate the accused with the crime without other sufficient proof. State v. Sterling, 377 So.2d 58 (La.1979).

We find the evidence complained of by defendant was clearly probative since the State had the burden of proving an aggravated battery with a dangerous weapon. Therefore, the probative value of this evidence outweighed any prejudicial effect which it might have had. State v. Denney, 352 So.2d 204 (La.1977).

This assignment of error is without merit.

DECREE

For the foregoing reasons the conviction and sentence of the defendant, Oliver Ray Mayberry, are affirmed.

AFFIRMED.


text:
    STATE of Louisiana, Plaintiff-Appellee, v. Phillip J.D. GUIDRY, Defendant-Appellant.
    No. CR84-9.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 10, 1984.
    Writ Denied Nov. 16, 1984.

      Alfred F. Boustany, II, Lafayette, for defendant-appellant.
    Charles Brandt, Asst. Dist. Atty., Lafayette, for plaintiff-appellee.
    Before FORET, STOKER and KNOLL, JJ.
   STOKER, Judge.

Defendant, Phillip J.D. Guidry, was tried for armed robbery and was found guilty by the jury. The trial judge sentenced him to incarceration in the custody of the Department of Corrections for thirty-five years at hard labor without benefit of parole, probation or suspension of sentence. The defendant appeals, contending the sentence is excessive.

The statutory sentence for armed robbery is imprisonment at hard labor for not less than five years and for not more than ninety-nine years, without benefit of parole, probation or suspension of sentence. LSA-R.S. 14:64. The sentence imposed is clearly within the statutory limit. However, the imposition of a sentence, although within the statutory limit, may violate the defendant’s constitutional right against excessive punishment. State v. Spencer, 374 So.2d 1195 (La.1979). LSA-Const. Art. 1, Sec. 20.

A punishment is “excessive” and unconstitutional if it (1) makes no measurable contribution to acceptable goals of punishment and hence is nothing more than the purposeless and needless imposition of pain and suffering; and (2) is grossly out of proportion to the severity of the crime. A punishment may fail this test on either ground. State v. Williams, 397 So.2d 1287 (La.1981). At the sentencing hearing, the trial judge gave reasons for the sentence. The reasons show a purpose and need for the sentence, so the first part of the test is met. The length of the sentence is necessary to avoid deprecating the seriousness of the offense and to avoid the risk that Guidry might commit another crime. The judge stated that anything less “would result in too soon a danger to society of serious magnitude.” He also gave reasons why the sentence is not grossly out of proportion to the severity of the crime. The conduct threatened serious harm to the victim, there were no grounds to justify the act, and his conduct indicates that he is a very dangerous man.

The sentence was not excessive and was within the trial court’s discretion. The sen-tenee is affirmed.

AFFIRMED.


author: FORET, Judge. KNOLL, Judge,

text:
    STATE of Louisiana, Appellee, v. Weldon AUCOIN, Appellant.
    No. K84-84.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 10, 1984.
    Dissenting Opinion Oct. 12, 1984.
    Thomas L. Lorenzi, Hunt, Godwin, Painter, Roddy, Lorenzi & Watson, Lake Charles, for appellant.
    Leonard Knapp, Jr., Dist. Atty., Lake Charles, for appellee.
    Before FORET, STOKER and KNOLL, JJ.
   FORET, Judge.

On August 15, 1983, defendant, Weldon Aucoin, was charged by bill of information with theft in the aggregate amount of $984.62, in violation of LSA-R.S. 14:67. Defendant filed a motion to quash the bill of information on the grounds that the prosecution was not timely instituted. After a hearing on January 18, 1984, the trial court denied defendant’s motion to quash. Defendant applied to this Court for writs of certiorari, prohibition and mandamus, which we denied. Defendant then applied for writs to the Louisiana Supreme Court, which granted defendant’s request and remanded the matter to this Court, 450 So.2d 657.

The sole issue presented for this Court’s determination is whether the State bore its burden of proving that the prosecution against defendant was timely instituted.

FACTS

On August 15, 1983, the State filed a bill of information in the Fourteenth Judicial District Court, Calcasieu Parish, charging defendant, Weldon Aucoin, with the “theft of U.S. currency belonging to the Calcasieu Parish School System with a value of $984.62, in violation of LSA-R.S. 14:67”. The bill of information alleged that the theft had occurred in 1976 on August 10 and 20, that is, some seven years before the State instituted the prosecution against defendant. Defendant filed a motion to quash the bill of information on the grounds that the State had not timely instituted the prosecution. A hearing on defendant’s motion to quash was held on January 18, 1984. At that hearing, defendant introduced into evidence the bill of information and a bill of particulars filed by the State, both of which indicated that the theft with which defendant was charged had occurred on August 10 and 20 of 1976.

The State’s only witness was Gabriel J. Barkete, Associate Superintendent for Administration and Personnel for the Calca-sieu Parish School Board. He testified that from some time before 1976 until July of 1983, defendant was employed by the Cal-casieu Parish School Board as a class “A” clerk in the maintenance department. He admitted that at the time of the alleged theft, he had no real connection with the maintenance department, the department in which defendant worked, and that he had no firsthand knowledge of whether defendant was allowed to requisition items on his own. The only other evidence introduced by the State at the hearing on defendant’s motion to quash was a letter of termination from Mr. Barkete to defendant dated July 6, 1983.

WAS DEFENDANT’S PROSECUTION TIMELY?

LSA-C.Cr.P. Art. 572(2) provides that no person shall be prosecuted for a felony not necessarily punishable by imprisonment at hard labor unless the prosecution is instituted within four years of the offense having been committed. The theft of $500 or more, the offense with which defendant was charged, is a felony punishable by imprisonment with or without hard labor. Therefore, defendant’s prosecution, which was instituted some seven years after the alleged crime, was not brought timely under Art. 572(2).

The State relies on an exception to Art. 572(2) established by LSA-C.Cr.P. Art. 573. Art. 573 states, in pertinent part:

“The time limitations established by Article 572 shall not commence to run as to the following offenses until the relationship or status involved has ceased to exist where:
(1) The offense charged is based on the misappropriation of any money or thing of value by one who, by virtue of his office, employment, or fiduciary relationship, has been entrusted therewith or has control thereof; ...”

Although the State need not allege facts showing that the time limitation has not expired, once the issue is raised, the State has the burden of proving that the prosecution was timely instituted. LSA-C. Cr.P. Art. 577. In the instant case, the State bore the burden of proving that the exception embodied in Art. 573(1) was applicable. To do this, the State had to show that defendant misappropriated money or something of value with which he was entrusted by virtue of his employment. This the State did not do.

It is apparent that what the State sought to show was that defendant had used his position as a class “A” clerk for the Calca-sieu Parish School Board to requisition light fixtures which the school board paid for but which defendant converted to his own use. Unfortunately, what the State sought to prove and what it actually proved at the hearing of defendant’s motion to quash were two different things. At the most, the State suggested that defendant had the authority to requisition items. It, however, introduced no evidence to show that defendant had used this authority to commit the theft with which he was charged. The exception of Art. 573, on which the State relies, requires that the misappropriation involved money or a thing of value with which a defendant is entrusted by virtue of his office, employment, or fiduciary relationship. The State did not show that defendant was entrusted by virtue of his employment with the $984.62 which he was alleged to have misappropriated. The State simply did not carry its burden of proof to show that the exception provided by Art. 573(1) was applicable. The trial court erred in not granting defendant’s motion to quash the bill of information.

DECREE

For the foregoing reasons, the decision of the trial court is reversed and defendant’s motion to quash is granted.

REVERSED AND RENDERED.

KNOLL, J., dissents and will assign reasons.

KNOLL, Judge,

dissenting.

This case falls within the exception provided in LSA-C.Cr.P. Art. 573(1). The defendant is charged with a theft from the Calcasieu Parish School Board on August 10, 1976. The record is abundantly clear that defendant was employed by the School Board when the theft occurred until he was terminated in 1983, shortly before he was charged with the theft. The majority opinion’s conclusion that the State did not carry its burden of proving the facts necessary to show that the prosecution was timely filed, failed to consider the inculpatory statements made by defendant to Mr. Barkete that defendant used his position with the School Board to requisition items.

For the foregoing reasons, I respectfully dissent.

      . It is questionable that the State even proved this much since most, if not all, of the testimony of its only witness was impermissible hearsay.


author: FORET, Judge.

text:
    STATE of Louisiana, Appellee, v. Eloise O. McCOY, Appellant.
    No. K84-323.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 10, 1984.

      Donald G. Kelly, Kelly & Salim, Natchi-toches, for appellant.
    James Buck, Asst. Dist. Atty., Colfax, for appellee.
    Before FORET, STOKER and KNOLL, JJ.
   FORET, Judge.

Defendant, Eloise 0. McCoy, was charged by bill of information with operating a vehicle while intoxicated, a violation of LSA-R.S. 14:98. She pled not guilty. Following a bench trial, she was found guilty and sentenced to pay a fine of $400.00 plus court costs, and in default of payment, to serve sixty days in the parish jail. Additionally, she was placed on six months’ unsupervised probation. We granted writs to consider the correctness of defendant’s conviction.

Defendant raises four assignments of error:

(1) Whether the trial court erred in allowing introduction of a certificate certifying the proper functioning of a photoelectric intoximeter and the good condition of ampules used with it when the State had not given defendant prior notice of its intention to introduce the certificate into evidence.
(2) Whether the trial court erred in admitting into evidence the results of a photoelectric intoximeter test when defendant had not been informed of the consequences of a refusal to submit to the test or the consequences if the test was conducted and indicated a blood alcohol level of .10 percent or above.
(3) Whether the trial court should have excluded testimony regarding the “field sobriety” test as being opinion evidence with suspect probative weight.
(4) Whether defendant’s right against self-incrimination was violated by allowing testimony concerning a “field sobriety” test which the arresting officer administered to defendant before advising her of her right against self-incrimination.

FACTS

Defendant was driving down Highway 71 in Grant Parish, Louisiana, when a Montgomery police officer detected her speeding. The officer, who was headed in the opposite direction, turned his patrol car around and proceeded after defendant with his lights flashing. Close behind defendant, the officer saw her car weave into the left-hand lane, return to her lane and then go off onto the right-hand shoulder of the road. At that point, the officer turned on his siren and defendant’s ear came to a stop. The officer testified that when defendant exited her automobile, she was wobbly and had to hold on to her car to steady herself. He observed a half fifth of 100 proof Old Forester in plain view on the seat of her car, along with a cup.

The officer proceeded to give defendant a “field sobriety” test which required defendant to touch her hands to her nose, to stand on one foot, and to pick up a coin from the ground. At the conclusion of the test, the officer arrested defendant and advised her of her “rights”.

The arresting officer took defendant to Colfax, Louisiana, where a state trooper, certified to do so, was to administer a photoelectric intoximeter (P.E.I.) test to defendant. The testimony of the arresting officer and that of the state trooper who administered the P.E.I. test conflicted with regard to who informed defendant of the consequences of her refusal to take the test. Each officer testified that he had not informed defendant, but that the other officer had. Defendant did sign a standard form which advised her of the consequences of her refusal to take the test and of her constitutional rights (all in accordance with LSA-R.S. 32:661). The state trooper administered the P.E.I. test to defendant and the results showed a .13 gram percent blood alcohol level.

ASSIGNMENT OF ERROR NO. 1

By this assignment, defendant contends that a certificate which certifies the proper functioning of a photoelectric intox-imeter and the good condition of the ampules used in its operation fall within the purview of LSA-R.S. 15:499, et seq. These statutes require that the State give the defendant written notice at least ten days before trial of its intention to use certificates of analysis of physical evidence. Since no such notice was given in the instant case, it is defendant’s contention that the certificate certifying the intox-imeter should not have been allowed into evidence. We disagree.

LSA-R.S. 15:499 et seq. clearly do not apply to the certificate which the State introduced in this case. The applicability of R.S. 15:499 et seq. is limited to certificates which make proof of the results of laboratory examinations of physical evidence. The certificate introduced at trial in the present case was not intended to make proof of the results of examinations of physical evidence but, rather, to certify the proper functioning of testing equipment. Clearly, R.S. 15:499 et seq. do not govern the certificate with which we are concerned.

Certificates certifying the proper functioning of alcohol testing equipment like the photoelectric intoximeter are governed by LSA-R.S. 32:661 et seq. and the regulations of the Department of Public Safety promulgated in accordance with those statutes. Although R.S. 32:665 does require that, upon the request of the person who submits to a chemical test, full information concerning that test be made available to that person or his attorney, there is no requirement that the State notify defendant of its intention to introduce into evidence the photoelectric intoximeter certificate. The trial court did not err in admitting the P.E.I. certificate into evidence.

ASSIGNMENT OF ERROR NO. 2

By this assignment of error, defendant argues that the results of the P.E.I. test were inadmissible due to the law enforcement officers’ failure to inform defendant of the consequences of a refusal to take the test or of the consequences if the test was conducted and the results indicated a blood alcohol concentration of .10 percent or above. We disagree.

The test results were not inadmissible due to the officers’ failure to inform defendant of the consequences if the test was conducted and the results indicated a blood alcohol level of .10 percent or above since, at the time of defendant’s arrest, there was no requirement that defendant be so informed. As a result of a 1983 amendment, effective January 1, 1984, R.S. 32:661 now requires that a person be informed of the consequences if the test is taken and the results indicate a high blood alcohol level. However, defendant’s arrest occurred on October 13, 1983, prior to the effective date of that amendment and, therefore, the pre-amendment statute controls. See State v. Smith, 359 So.2d 157 (La.1978). The pre-amendment statute only required that a person be informed of the consequences of a refusal to take the test.

Although it does appear that the officers did not inform defendant of the consequences of a refusal to take the test, we find that their failure in this regard did not cause the test results to be inadmissible. Since defendant did submit to the P.E.I. test, any question concerning the officers’ failure to inform her of the consequences of a refusal to take the test is moot.

ASSIGNMENT OF ERROR NO. 3

The defendant contends that the trial court erred in allowing evidence of the “field sobriety” test since it was opinion evidence and only had suspect probative value.

A careful examination of the testimony of the arresting officer indicates that the officer only testified as to defendant’s demeanor and actions. He testified that defendant was “wobbly”, that she could hardly stand up, and that when she attempted to pick a coin up off the ground she nearly fell against him. At no point in his testimony did he offer the opinion that defendant was intoxicated.

Even if the officer had testified that defendant was intoxicated, such testimony would not have been infirm. Witnesses are allowed to draw reasonable inferences from personal observations. State v. Prestridge, 399 So.2d 564 (La.1981). Intoxication is an observable condition about which a witness may testify. State v. Neal, 321 So.2d 497 (La.1975).

The testimony of the arresting officer with respect to defendant’s “field sobriety” test was not barred as opinion evidence. Furthermore, it was clearly relevant, its probative value far outweighing any possible prejudice that may have resulted from its admission.

ASSIGNMENT OF ERROR NO. 4

In this assignment of error, defendant complains that her right against self-incrimination was violated when the arresting officer conducted a “field sobriety” test without first advising her of her right to remain silent.

It is a well settled rule that the right against self-incrimination is not implicated in the gathering of physical evidence and that defendant’s Fifth Amendment rights cannot be used to bar demonstrative evidence. State v. Allen, 440 So.2d 1330 (La.1983); State v. Spence, 418 So.2d 583 (La.1982). This assignment of error is without merit.

DECREE

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

AFFIRMED.

      . Under the circumstances, we must conclude that defendant was not informed of the consequences of her refusal to take the test.

      . “§ 499. Certificates of analysis
      All criminalistics laboratories established by laws of this state or by laws of the United States are authorized to make proof of the results of laboratory examinations of physical evidence by the certificate of the person in charge of such laboratory. Such certificate shall list:
      (1) The date and time such evidence was delivered to such laboratory.
      (2) The name of the person making such delivery.
      (3) The name of the person taking such delivery.
      (4) A brief description of the evidence.
      (5) The type of examination requested.
      (6) The name of the person making the examination.
      (7) The date or dates of the examination.
      (8) The results of the examination; and
      (9) The certificate of analysis shall be signed by the person making the examination and by the person in charge of the laboratory.
      § 500. Admissibility
      In all criminal cases and in all cases in juvenile or family courts which are of a criminal nature, the courts of this state shall receive as evidence any certificate made in accordance with R.S. 15:499 subject to the conditions contained in this Section. It shall be received in evidence by such court as prima facie proof of its contents and as prima facie proof of proper custody of said evidence from the time of delivery to the laboratory until the time of its removal for transport to court, provided that the party against whom the certificate is sought to be used may summons those making the original of said certificate as witnesses under cross-examination, and in such cases the certificate shall not be prima facie proof of its contents or of proper custody.
      Added by Acts 1976, No. 439, § 1.
      § 501. Notice of opposing party
      The party seeking to introduce a certificate made in accordance with R.S. 15:499 shall, not less than ten days prior to the commencement of the trial, give written notice of intent to offer proof by certificate. Such notice shall include a copy of the certificate.”


text:
    STATE of Louisiana, Plaintiff-Appellee, v. Purvis R. GASPARD, Defendant-Appellant.
    No. CR83-1007.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 10, 1984.
    Alfred Boustany, II, Lafayette, for defendant-appellant.
    Calvin Woodruff, Asst. Dist. Atty., Abbe-ville, for plaintiff-appellee.
    Before GUIDRY, LABORDE and YEL-VERTON, JJ.
   LABORDE, Judge.

Defendant, Purvis R. Gaspard, and Raymond Clinton Bobo were each charged with one count of theft of livestock in violation of LSA-R.S. 14:67.1. After pleading guilty, defendant and Raymond Bobo were each sentenced to serve one (1) year in the parish jail as a probationary condition of the suspension of their three (3) year sentences at hard labor. Defendant contends .on appeal that his sentence is excessive. Raymond Bobo has also appealed on the same basis for which a separate opinion is being rendered this day by us. Considering that defendant’s sentence is not excessive, we affirm.

FACTS

On January 21, 1983, defendant, Purvis R. Gaspard and Raymond Clinton Bobo were arrested for theft of livestock in violation of LSA-R.S. 14:67.1. The record reveals that after planning the trip, defendant and Raymond Bobo gathered equipment necessary to slaughter a beef, including a hatchet, six knives, a pulley, a rope, a rifle and a headlight. At approximately 4:30 a.m., they arrived at the scene and slaughtered one beef belonging to Mark E. Broussard. Upon returning home, they were arrested with the meat in their possession.

Defendant and Raymond Bobo both entered a guilty plea and following a favorable presentence investigation each received a three (3) year suspended sentence and were placed on probation with a special condition that they each serve one (1) year in the parish jail.

Defendant appealed, as well as Raymond Bobo for which a separate opinion is being rendered this day by us in State v. Bobo, our docket No. CR83-1008, 457 So.2d 893 (La.App. 3rd Cir.1984).

ISSUE

Defendant appeals contending that his sentence is excessive and that the trial judge failed to comply with the sentencing guidelines under LSA-C.Cr.P. article 894.1.

REVIEW OF SENTENCE AND COMPLIANCE WITH LSA-C.Cr.P. 894.1

The penalty for theft of livestock provides for a fine of not more than five thousand dollars ($5,000) or imprisonment, with or without hard labor for not more than ten (10) years, or both. Defendant avers that imposition of a one (1) year sentence without hard labor as a condition of probation is excessive given the fact that he is a first offender and that restitution has been made to the victim. Defendant further contends that the trial judge failed to state for the record the considerations and factual bases for the sentences imposed. We agree with his latter contention that the trial judge failed to state for the record the factual basis and the considerations taken into account for imposing sentence. However, in State v. Cox, 369 So.2d 118 (La.1979), the Louisiana Supreme Court held that where the trial judge imposes a sentence without adequately complying with article 894.1, the reviewing court may vacate a sentence and remand for resen-tencing when the reasons for an apparently severe sentence, in relation to the particular offender and the actual offense committed, do not appear in the record.

In sentence review cases, we first consider whether the trial court has complied with the requirements of article 894.1. Assuming that it has so complied, we then determine the question of excessiveness on the merits in light of the circumstances alleged on appeal. If the trial court has failed to comply with article 894.1, as in this case, we next consider whether the defendant has shown his sentence to be an apparently severe or excessive one. If it is shown to be excessive, the court will remand for resentencing. If it is not, we will affirm. State v. Vizena, 454 So.2d 1291 (La.App. 3rd Cir.1984).

In this instance, we find that the trial judge failed to state for the record the considerations and factual bases taken into account for imposing sentence on the defendant. LSA-C.Cr.P. 894.1(C). However, we find that defendant failed to show that his sentence is excessive or apparently severe in relation to him and the actual offense committed. Further, we do not find from our independent research that the defendant’s sentence is an excessive one under the circumstances. In State v. Gray, 436 So.2d 639 (La.App. 3rd Cir.), writ denied, 440 So.2d 150 (La.1983), we affirmed a conviction and sentence of one (1) year at hard labor for theft of livestock. After considering the factual similarities of Gray supra and the instant case, we conclude that the defendant’s sentence in this instance is not disproportionate in light of the circumstances surrounding the offense.

In State v. Jones, 381 So.2d 416 (La.1980), the Supreme Court refused to remand for resentencing despite the trial judge’s inadequate compliance with article 894.1. The court held that the penalty was not an apparently severe one. The same is true in the case before us.

Accordingly, we hold that the defendant’s sentence must be upheld.

For the above and foregoing reasons, the defendant’s, Purvis R. Gaspard, sentence is affirmed.

AFFIRMED.


text:
    STATE of Louisiana, Plaintiff-Appellee, v. Raymond Clinton BOBO, Defendant-Appellant.
    No. CR83-1008.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 10, 1984.
    Alfred Boustany, II, Lafayette, for defendant-appellant.
    Calvin E. Woodruff, Asst. Dist. Atty., Abbeville, for plaintiff-appellee.
    Before GUIDRY, LABORDE and YEL-VERTON, JJ.
   LABORDE, Judge.

For the reasons assigned this date in State v. Gaspard, 457 So.2d 891 (La.App. 3rd Cir.1984) our docket No. CR83-1007, with which the instant case was consolidated at trial and on appeal, defendant’s sentence is affirmed.

AFFIRMED.


author: DOUCET, Judge.

text:
    STATE of Louisiana, Plaintiff-Appellee, v. Henry C. HORNE, Defendant-Appellant.
    Nos. CR83-621 to CR83-623.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 10, 1984.

      See also, La.App., 457 So.2d 895 and, La.App., 457 So.2d 895.
    George L. Higgins, III, Pineville, for defendant-appellant.
    G. Earl Humphries, Asst. Dist. Atty., Alexandria, for plaintiff-appellee.
    Before DOMENGEAUX, CUTRER and DOUCET, JJ.
   DOUCET, Judge.

On October 14, 1982, Defendant, Henry C. Horne, was charged in the Ninth Judicial District for the Parish of Rapides with:

(1) Four counts of hunting and shooting deer with a firearm smaller than a .22 caliber centerfire, in violation of LA.R.S. 56:124(1);
(2) Four counts of hunting and taking deer after one-half hour after official sunset and before one-half hour before official sunrise, in violation of LA.R.S. 56:123(C);
(3) Four counts of hunting and taking deer out of season, in violation of LA. R.S. 56:123(C).

On December 13, 1982, the defendant was tried before a jury of six and, after several days of trial, a mistrial was declared by the trial judge. After the mistrial the District Attorney’s Office amended the Bill of Information to charge the defendant under LA.R.S. 56:124(6) with four counts of possession of a wild game quadruped (deer), and under LA.R.S. 56:262 with possession of an alligator skin.

On June 7th, defendant filed a Motion to Quash the Amended Bills of Information. The motion was denied.

In a plea-bargaining agreement, the District Attorney’s office dismissed the one count of violation of LA.R.S. 56:262 in exchange for a plea of guilty to the four counts of violation of LA.R.S. 56:124(6). Defendant reserved his right to appeal the denial of the Motion to Quash under State v. Crosby, 338 So.2d 584 (La.1976).

Defendant appeals the denial of the Motion to Quash by the Trial Court Judge.

Although defendant has filed a brief to this court, he perfected no assignments of error pursuant to the provisions of La.C.Cr.P. art. 844. Therefore, the scope of appellate review in this case is limited to a review of the pleadings and proceedings, without inspection of the evidence, for errors patent. State v. Smith, 418 So.2d 515, 524 and n. 3 (La.1982); State v. Gadison, 441 So.2d 831, 832 (La.App. 3rd Cir.1983). In accord with the mandate of La.C.Cr.P. art. 920, we have inspected the face of the record for errors patent. We find no error. We affirm defendant’s conviction and sentence.

AFFIRMED.


text:
    STATE of Louisiana, Plaintiff-Appellee, v. Henry C. HORNE, Defendant-Appellant.
    No. CR83-622.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 10, 1984.
    Before DOMENGEAUX, CUTRER and DOUCET, JJ.
   DOUCET, Judge.

For the reasons assigned in the mattér entitled State of Louisiana v. Henry C. Horne, 457 So.2d 893 (La.App. 3rd Cir.1984), our Docket Number CR83-621, the conviction and sentence imposed are affirmed.

CONVICTION AND SENTENCE AFFIRMED.


text:
    STATE of Louisiana, Plaintiff-Appellee, v. Henry C. HORNE, Defendant-Appellant.
    No. CR83-623.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 10, 1984.
    Before DOMENGEAUX, CUTRER and DOUCET, JJ.
   DOUCET, Judge.

For the reasons assigned in the matter entitled State of Louisiana v. Henry C. Horne, 457 So.2d 893 (La.App. 3rd Cir.1984), our Docket Number CR83-621, the conviction and sentence imposed are affirmed.

CONVICTION AND SENTENCE AFFIRMED.


author: DOMENGEAUX, Judge.

text:
    STATE of Louisiana v. Joe M. MARIEN.
    Nos. CR83-704 to CR83-708.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 10, 1984.

      Michael Glass, Provosty, Sadler & deLau-nay, Alexandria, for defendant.
    G. Earl Humphries, Asst. Dist. Atty., Alexandria, for plaintiff.
    Before DOMENGEAUX, CUTRER, and DOUCET, JJ.
   DOMENGEAUX, Judge.

This criminal case was consolidated for appeal with the cases of State of Louisiana v. Joe M. Marien, 457 So.2d 899 (our Docket No. CR83-704) (La.App. 3rd Cir.1984); State of Louisiana v. Joe M. Marien, 457 So.2d 899 (our Docket No. CR83-705) (La.App. 3rd Cir.1984); State of Louisiana v. Joe M. Marien, 457 So.2d 899 (our Docket No. CR83-707) (La.App. 3rd Cir.1984); and State of Louisiana v. Joe M. Marien, 457 So.2d 900 (our Docket No. CR83-708) (La.App. 3rd Cir.1984). Four of the charges brought against defendant arise out of his arrest on October 7, 1982, and one of the charges stems from defendant’s arrest on November 1, 1980. As these five consolidated cases are before this Court on a patent error review, we will consider and discuss all patent issues in this opinion, but we will render a separate opinion in each of the consolidated cases.

The defendant, Joe M. Marien, was charged by Bill of Information on October 14, 1982, with various violations of hunting regulations, to-wit: Possessing an untagged alligator skin, a violation of La.R.S. 56:262; four counts of hunting and shooting a deer with a firearm smaller than a .22 caliber centerfire, a violation of La.R.S. 56:124(1); hunting with a .22 caliber firearm and a 30-06 firearm later than one hour after official sunset and prior to one-half hour before official sunrise, a violation of La.R.S. 56:123 C; four counts of hunting and taking deer later than one hour after official sunset and prior to one-half hour before official sunrise, violations of La.R.S. 56:123 C; and four counts of hunting and taking a deer in closed season, in violation of La.R.S. 56:123 C.

On November 5, 1982, the defendant appeared in open court, entered pleas of not guilty and requested a trial by jury as to each case. On December 13, 1982, the defendant again appeared in open court, on this occasion assisted by counsel, and filed a motion to suppress evidence seized, which motion was denied, and then, after waiving formal arraignment, withdrew his former plea as to each case and each count. An agreement was reached by and between the district attorney and defendant whereby the multiple counts of violations of La. R.S. 56:124(1), hunting and shooting deer with a firearm smaller than a .22 caliber centerfire; La.R.S. 56:123 C, hunting and taking deer later than one-half hour after official sunset and prior to one-half hour before official sunrise; and La.R.S. 56:123 C, hunting and taking a deer in closed season, were reduced to a single count of a violation of each statute. The defendant entered a plea of guilty as to all counts against him, reserving however his right to appeal the constitutionality of the statute under which he was being charged and sentenced.

During the course of the hearings on December 13, 1982, the district attorney was allowed to make an oral amendment to the Bill of Information which charged defendant with hunting with a .22 caliber firearm and a 30-06 firearm later than one hour after official sunset and prior to one-half hour before official sunrise. The oral amendment and subsequent amended written Bill of Information charged the defendant with hunting “deer with a firearm, namely one .22 caliber Remington, after one hour after official sunset and before one-half hour before official sunrise.”

Prior to defendant’s guilty plea, the court conducted a complete Boykinization (see Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969)) wherein the defendant was apprised of all possible penalties and sentences he might incur upon entering a plea of guilty to the crimes charged. The defendant was informed of his right to a trial by jury, his right to counsel, right against self-incrimination, right to confront witnesses, and that the State has the burden to prove its case beyond a reasonable doubt. Defendant pled guilty to all charges. The court was satisfied that the defendant was making a voluntary and intelligent waiver of all his rights and thus accepted defendant’s guilty pleas.

The defendant waived all delays for sentencing, but the court delayed sentencing and ordered a pre-sentence investigation.

On June 13, 1983, following a report of the results of the pre-sentencing investigation the court sentenced defendant on the various charges to which he pled guilty.

Defendant lodged this appeal by way of an oral motion for appeal at the sentencing hearing. Defendant, however, failed to submit written assignments of error nor did he submit briefs alleging any assignments of error. The Louisiana Code of Criminal Procedure Article 844 states in pertinent part that: “(t)hat party appealing shall designate in writing, those errors which are to be urged on appeal. This assignment of errors shall be filed within the time specified by the trial judge, but not later than five days prior to the return date.” Failure to comply with La.C.Cr.P. Art. 844 by not designating and not filing assigned errors with the trial court within the time prescribed precludes the defendant from raising those errors on appeal. State v. Zeno, 322 So.2d 136 (La.1975), and State v. Walker, 434 So.2d 1315 (La.App. 3rd Cir.1983). In addition, assignments of error which are not briefed are considered abandoned. State v. Carlisle, 315 So.2d 675 (La.1975), and State v. Dewey, 408 So.2d 1255 (La.1982).

As no assignments of error were perfected as required by La.C.Cr.P. Art. 844, this Court is limited to a review of the record for errors that are discoverable by a mere inspection of the pleadings and proceedings. C.Cr.P. Art. 920; State v. Walker, 434 So.2d 1315 (La.App. 3rd Cir.1983); State v. Jackson, 332 So.2d 211 (La.1976); and State v. Gerald, 325 So.2d 574 (La.1976).

Accordingly, we have conducted a careful examination of the record before us pursuant to the provisions of La.C.Cr.P. Art. 920. Our review reveals that this prosecution was properly instituted by five Bills of Information, all in proper form, signed by the assistant district attorney for the Ninth Judicial District. On December 13, 1982, the State was allowed by the Court, upon proper motion to orally amend one of the five Bills of Information and the State did subsequently perfect a written amendment to the Bill of Information.

The court minutes reflect that defendant was accompanied by retained counsel when appearing before the court to waive arraignment, withdraw his plea of not guilty, and answering a plea of guilty as charged as to each and every count in the Bills of Information. The transcript also evidences that defendant was fully Boykinized, and that defendant was present at all stages of the proceedings through sentencing.

The defendant waived all delays for sentencing but was not sentenced until after a pre-sentence investigation was completed. A careful review of the record of this case discloses that in four of the five charges to which defendant pled guilty the sentences imposed fall within the statutory limits.

The record reflects that as to one count to which the defendant pled guilty the trial court erroneously imposed an illegally lenient sentence. Defendant was charged by way of an amended Bill of Information with a violation of La.R.S. 56:123 C in that he did “hunt deer with a firearm, namely one .22 caliber Remington, after one hour after official sunset and before one-half hour before official sunrise.” The transcript of defendant’s sentence hearing indicates that the trial judge imposed a sentence of $130.00 and $41.00 costs of court, in default thereof to serve thirty days in the parish jail. A violation of La.R.S. 56:123 C by the hunting or taking of deer after one-half hour after official sunset and before one-half hour before official sunrise constitutes a Class ■ 4 violation. La.R.S. 56:123 E(2). A Class 4 violation provides that for a first offense the fine shall be not less than $500.00 nor more than $750.00, or imprisonment for not more than 120 days or both. La.R.S. 56:34. It is quite apparent from the record that the sentence imposed by the trial court did not fall within the statutory limit.

However, due to the Supreme Court’s mandate in State v. Jackson, 452 So.2d 682 (La.1984), this Court is precluded from taking notice of the illegality of this sentence as an error patent on the face of the record. It is the Supreme Court’s opinion that in the situation where a defendant in a criminal case has appealed and the patent error review determines that an illegally lenient sentence has been imposed “that an appellate court under such circumstances should disregard sentencing errors favorable to the defendant unless the prosecution has raised the issue in the trial court and has sought appellate review.” State v. Jackson, supra.

For the aforementioned reasons, the conviction and sentence of defendant is hereby affirmed,

AFFIRMED.

      . The author of this opinion disagrees with the rationale of State v. Jackson. It seems that such a rationale is in direct contravention of C.Cr.P. Art. 920. I cannot understand the reasoning of State v. Jackson. It gives a defendant-appellant an advantage to which he is not entitled constitutionally, statutorily, or jurisprudentially. Impartial justice in a criminal case should extend not only to the defendant but to the State as well.


text:
    STATE of Louisiana v. Joe M. MARIEN.
    No. CR83-704.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 10, 1984.
    Michael Glass, Provosty, Sadler & deLau-nay, Alexandria, for defendant.
    G. Earl Humphries, Asst. Dist. Atty., Alexandria, for plaintiff.
    Before DOMENGEAUX, CUTRER and DOUCET, JJ.
   DOMENGEAUX, Judge.

For the reasons stated in State of Louisiana v. Joe M. Marien, 457 So.2d 895 (Our No. CR83-706) (La.App. 3rd Cir.1984) handed down this day, the conviction and sentence of defendant, Joe M. Marien, is hereby affirmed.

AFFIRMED.


text:
    STATE of Louisiana v. Joe M. MARIEN.
    No. CR83-705.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 10, 1984.
    Michael Glass, Provosty, Sadler & deLau-nay, Alexandria, for defendant.
    G. Earl Humphries, Asst. Dist. Atty., Alexandria, for plaintiff.
    Before DOMENGEAUX, CUTRER and DOUCET, JJ.
   DOMENGEAUX, Judge.

For the reasons stated in State of Louisiana v. Joe M. Marien, 457 So.2d 895 (Our No. CR83-706) (La.App. 3rd Cir.1984) handed down this day, the conviction and sentence of defendant, Joe M. Marien, is hereby affirmed.

AFFIRMED.


text:
    STATE of Louisiana v. Joe M. MARIEN.
    No. CR83-707.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 10, 1984.

      Michael Glass, Provosty, Sadler & deLau-nay, Alexandria, for defendant.
    G. Earl Humphries, Asst. Dist. Atty., Alexandria, for plaintiff.
    Before DOMENGEAUX, CUTRER and DOUCET, JJ.
   DOMENGEAUX, Judge.

For the reasons stated in State of Louisiana v. Joe M. Marien, 457 So.2d 895 (Our No. CR83-706) (La.App. 3rd Cir.1984) handed down this day, the conviction and sentence of defendant, Joe M. Marien, is hereby affirmed.

AFFIRMED.


text:
    STATE of Louisiana v. Joe M. MARIEN.
    No. CR83-708.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 10, 1984.
    Michael Glass, Provosty, Sadler & deLau-nay, Alexandria, for defendant.
    G. Earl Humphries, Asst. Dist. Atty., Alexandria, for plaintiff.
    Before DOMENGEAUX, CUTRER and DOUCET, JJ.
   DOMENGEAUX, Judge.

For the reasons stated in State of Louisiana v. Joe M. Marien, 457 So.2d 895 (Our No. CR83-706) (La.App. 3rd Cir.1984) handed down this day, the conviction and sentence of defendant, Joe M. Marien, is hereby affirmed.

AFFIRMED.


text:
    STATE of Louisiana, Plaintiff-Appellee, v. Felton STEVENS, Defendant-Appellant.
    Nos. CR83-748 to CR83-751.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 10, 1984.

      Felton Stevens, pro. per.
    Leonard Knapp, Jr., Dist. Atty., Karen Price, Asst. Dist. Atty., Lake Charles, for plaintiff-appellee.
    Before GUIDRY, LABORDE and YEL-VERTON, JJ.
   YELVERTON, Judge.

Defendant, Felton Stevens, charged with two counts of aggravated crime against nature (La.R.S. 14:89.1), pleaded guilty to one count after the State dismissed the other, and was sentenced to six years at hard labor without benefit of probation, parole, or suspension of sentence. He appeals this sentence.

This appeal is consolidated with three others taken from sentences imposed simultaneously after guilty pleas to three separate bills of information charging burglary (La.R.S. 14:62), No. CR83-749, No. CR83-750, and No. CR83-751. The trial court imposed a sentence of six years at hard labor on each of the three burglary convictions, all four sentences to run concurrently.

No assignments of error were perfected as required by LSA-C.Cr.P. art. 844, in any of the four appeals, nor has a brief been filed. Therefore, this court is limited to a review of the record for errors that are discoverable by a mere inspection of the pleadings. C.Cr.P. art. 920; State v. Jackson, 332 So.2d 211 (La.1976); State v. Gerald, 325 So.2d 574 (La.1976). We have reviewed the record and find no error.

Accordingly, the conviction and sentence are affirmed.

AFFIRMED.


text:
    STATE of Louisiana, Plaintiff-Appellee, v. Felton STEVENS, Defendant-Appellant.
    No. CR83-749.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 10, 1984.
    Felton Stevens, pro. per.
    Leonard Knapp, Jr., Dist. Atty., Karen Price, Asst. Dist. Atty., Lake Charles, for plaintiff-appellee.
    Before GUIDRY, LABORDE and YEL-VERTON, JJ.
   YELVERTON, Judge.

For the reasons given in the opinion this date handed down in State v. Stevens, 457 So.2d 900 (La.App.3rd Cir.1984) (our docket no. CR83-748), the sentence appealed from is affirmed.

AFFIRMED.


author: YELYERTON, Judge.

text:
    STATE of Louisiana, Plaintiff-Appellee, v. Felton STEVENS, Defendant-Appellant.
    No. CR83-750.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 10, 1984.
    Felton Stevens, pro. per.

      Leonard Knapp, Jr., Dist. Atty., Karen Price, Asst. Dist. Atty., Lake Charles, for plaintiff-appellee.
    Before GUIDRY, LABORDE and YEL-VERTON, JJ.
   YELYERTON, Judge.

For the reasons given in the opinion this date handed down in State v. Stevens, 457 So.2d 900 (La.App.3rd Cir.1984) (our docket no. CR83-748), the sentence appealed from is affirmed.

AFFIRMED.


text:
    STATE of Louisiana, Plaintiff-Appellee, v. Felton STEVENS, Defendant-Appellant.
    No. CR83-751.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 10, 1984.
    Felton Stevens, pro. per.
    Leonard Knapp, Jr., Dist. Atty., Karen Price, Asst. Dist. Atty., Lake Charles, for plaintiff-appellee.
    Before GUIDRY, LABORDE and YEL-VERTON, JJ.
   YELVERTON, Judge.

For the reasons given in the opinion this date handed down in State v. Stevens, 457 So.2d 900 (La.App.3rd Cir.1984) (our docket no. CR83-748), the sentence appealed from is affirmed.

AFFIRMED.