author: KNOLL, Judge.

text:
    Jimmy C. MELDER, Plaintiff-Appellee, v. Cecil V. GASSIOTT, Defendant-Appellant.
    No. 83-156.
    Court of Appeal of Louisiana, Third Circuit.
    June 29, 1983.
    Ronald J. Bertrand, Lake Charles, for defendant-appellant.

      John E. Demoradle, Kinder, for plaintiff-appellee.
    Before STOKER, DOUCET and KNOLL, JJ.
   KNOLL, Judge.

Jimmy C. Melder brought an action for breach of a building contract against Cecil V. Gassiott to recover damages for the alleged faulty construction of the addition of a room to Melder’s home.

The trial court rendered judgment in favor of Melder for $6,750 and Gassiott appealed. In his appeal Gassiott presents two issues:

(1) Whether the trial court committed manifest error in finding Gassiott liable to Melder; and,
(2) Whether the trial court properly determined the amount of damages it awarded Melder.

Melder has filed an answer to Gassiott’s appeal seeking an increase of the trial court’s award of damages.

FACTS

Jimmy C. Melder orally contracted with Cecil V. Gassiott to construct a 13' X 24' addition to the Melder home. As part of the agreement Gassiott was to complete the exterior work on the project and install a bathroom for $6,900; Melder was to do all of the other work. Gassiott finished his portion of the work during the first months of 1980 and received his final payment from Melder on March 14, 1980.

On May 15, 1981 Melder instituted this suit against Gassiott alleging construction defects caused by faulty workmanship. In summation his complaints are that Gassiott: (1) failed to brace the roof with roof trusses; (2) improperly prepared the foundation for the concrete floor causing the new addition to separate from the original Melder home; and, (3) utilized butt joints in joining the brick from the new addition to the original structure.

Articles 2762 and 2769 of the Civil Code apply to this case. Article 2762 reads as follows:

“If a building, which an architect or other workman has undertaken to make by the job, should fall to ruin either in whole or in part, on account of the badness of the workmanship, the architect or undertaker shall bear the loss if the building falls to ruin in the course of ten years, if it be a stone or brick building, and of five years if it be built in wood or with frames filled with bricks.”

Articlp 2769 reads as follows:

“If an undertaker fails to do the work he has contracted to do, or if he does not execute it in the manner and at the time he has agreed to do it, he shall be liable in damages for the losses that may ensue from his non-compliance with his contract.”

Under these two codal articles it is encum-bent upon the plaintiff to prove his case by a preponderance of the evidence. A & M Pest Control Serv. v. Fejta Const. Co., 338 So.2d.946 (La.App. 4th Cir.1976). Plaintiff’s burden in such cases may be satisfied either through direct or circumstantial evidence. In . Jordan v. Travelers Insurance Company, 257 La. 995, 245 So.2d 151 (La. 1971) the court said:

“ * * * Whatever the descriptive term used, however, proof by direct or circumstantial evidence is sufficient to constitute a preponderance, when, taking the evidence as a whole, such proof shows that the fact or causation sought to be proved is more probable than not.”

Nichols Ford Company, Inc. v. Hughes, 292 So.2d 345 (La.App. 2nd Cir.1974) delineated three elements of proof in order for a landowner to recover damages from a contractor for defective workmanship; the landowner must establish: (1) that defects exist; (2) that faulty materials or workmanship caused the defects; and (3) the cost of repairing the defects.

In every building contract it is implied that the builder’s work will be performed in a good workmanlike manner, free from defects in materials and workmanship. Trahan v. Broussard, 399 So.2d 782 (La.App. 3rd Cir.1981). As forceful as this legal principle is, the jurisprudence has clearly enunciated that before damages may be imposed on a contractor for the breach of this implied obligation “it must be established that the damages suffered by the obligee arose as a result of faulty workmanship or from the use of defective materials or equipment which the undertaker knew or should have known were defective.” Tiger Well Service v. Kimball Production Co., 343 So.2d 1153 (La.App. 3rd Cir.1977); Bico Enterprises, Inc. v. Cantrell, 413 So.2d 260 (La.App. 3rd Cir.1982). The proof needed to impose liability under C.C. Arts. 2762 and 2769 must include “some showing of want of skill, efficiency or knowledge, or some lack of ordinary care in the performance of the work or in the selection of suitable materials and equipment.” Tiger Well Service, supra. Under the codal articles applicable to the case at. bar there is no liability as a matter of law or strict liability.

The record reflects little dispute as to the condition of the room constructed by Gas-siott. No roof trusses were installed in the addition, which caused the roof to sag. At the butt joint where the bricks of the new construction meet the original home, the bricks and mortar of the addition have separated leaving a crack of about one-quarter inch at its greatest point of separation at the soffit, tapering down proportionately to the concrete floorslab. All along the depth of the home where the new concrete slab butts against the old slab there is a crack.

The testimony of both litigants reveal that roof trusses are required in construction of this size. Gassiott contends that the installation of the roof trusses was not part of his agreement to do the exterior work. We disagree. The record clearly reflects that Gassiott contracted to put up the roof of the Melder addition. The purpose of the trusses is to provide structural support to the roof. The sagging of the roof is the result of the absence of roof trusses. This is work that Gassiott has failed to do and Melder is therefore entitled to damages occasioned by this failure. LSA-C.C. Art. 2769.

Concerning the separation of the bricks at the butt joint and the separation of the new concrete slab from the old, Melder’s expert contractor testified that he would have tied the two slabs together with re-bars; added postholes filled with concrete at various points in the footing; and provided a footing of six inches on undisturbed soil. He testified that the incorporation of these precautions would not pretermit the sagging of the foundation, but would significantly have reduced the amount of separation. He admitted' that he had not probed the soil to see if Gassiott had utilized any of the precautions he advocated.

The record shows that Gassiott tied the two slabs together with four “dowpins”; dug six postholes beneath the footing and filled them with concrete; and dug a footing of approximately sixteen inches deep and twelve inches wide. This testimony is uncontradicted and corroborated by Donald R. Wright, defendant’s expert licensed contractor, who probed beneath the footing to confirm the existence of at least two concrete postholes and by examination saw one of the rebars. The existence of the remaining postholes and rebars was testified to by Freddie Crawford who worked on the construction of this footing.

Both expert contractors devoted a significant amount of testimony to a discussion of the occurrence of a sagging foundation when a new concrete slab is butted against an older. Despite the utilization of the precautions advocated by plaintiff’s expert contractor, it was his opinion that he could not guarantee that the two slabs would not have separated; he could only say that by using these precautions there would not be an excessive amount of separation.

Plaintiff further complained of the technique of laying the brick at the butt joint. Although plaintiff’s expert contractor said that he would have used a technique which involved the interlacing of the new brick with the old at their juncture, he was unable to establish that this in itself caused the separation. Likewise the use of a butt joint was not established to be an unwork-manlike procedure. Although it may be said that Melder would have preferred the bricks to have been interlaced, no specification was shown to this effect. Gassiott chose one of the two methods generally accepted by the building community.

Taking the evidence in its entirety we can not say that Melder has proved that it is more probable that Gassiott’s alleged improper technique for laying the foundation to the Melder addition caused the new concrete slab to separate. In this regard Melder has failed to prove his case by a preponderance of the evidence that Gassiott constructed the foundation of the Melder addition in an unworkmanlike manner.

DECREE

For the foregoing reasons the judgment of the trial court is set aside and this case is remanded for a determination of the amount of roof damages sustained to the Melder home. Costs of this appeal are assessed to the defendant-appellant.

REVERSED AND REMANDED.


source: Caselaw Access Project

author: CUTRER, Judge.

license: Public Domain

text:
    STATE of Louisiana, Plaintiff-Appellee, v. Bennie C. BREWER, Defendant-Appellant.
    No. CR82-619.
    Court of Appeal of Louisiana, Third Circuit.
    June 29, 1983.
    Writ Denied Oct. 7,1983.
    J. Michael Small, Kathrine S. Williamson, Small, Small, Williamson & Brocato, Alexandria, for defendant-appellant.
    Speedy O. Long, Dist. Atty., Dan B. Cor-nett and Norris Dale Jackson, Asst. Dist. Attys., Jena, for plaintiff-appellee.
    Before FORET, CUTRER and LA-BORDE, JJ.
   CUTRER, Judge.

Defendant, Bennie C. Brewer, was charged by separate bills of information with two counts of distribution of marijuana. The State chose to nolle prosequi one of the counts, and defendant pled guilty to the other. A presentence investigation report was prepared and submitted to the trial court which subsequently sentenced defendant to a term of imprisonment of six years at hard labor and a $3,500.00 fine plus court costs. However, the execution of defendant’s sentence was ordered to be “deferred subject to his recuperation from surgery.”

Upon this appeal, defendant raises only one assignment of error, which alleges that the trial court erred in imposing an excessive sentence in violation of LSA-Const. art. 1 § 20.

PACTS

In early 1981, the LaSalle Parish Sheriff’s Department initiated an investigation into reported illegal drug activity. One of the targeted locations in the parish was Brewer’s Grocery, owned by defendant. Two Alexandria police officers were enlisted as undercover agents, and they subsequently made illegal drug purchases at the store from “Bingo” Brewer, who is defendant’s son, and from Annie Lewis, who was living with defendant at the time of the offenses. Defendant had initially advised the officers that his son, Bingo, could supply their drug needs. On April 23,1981, defendant sold to one of the agents a small bag of marijuana for $45.00. At the same time, defendant gave the other agent a hand-rolled marijuana cigarette. Each of these transactions resulted in a separate bill of information charging that defendant unlawfully distributed marijuana, but the State chose to nolle prosequi the second count, involving the cigarette, and defendant pleaded guilty to distribution of marijuana on the first count.

Defendant alleges that his sentence of six years at hard labor and a fine of $3,500.00 plus court costs is unconstitutionally excessive.

ASSIGNMENT OF ERROR

In contending that this sentence was constitutionally infirm, defendant relies upon the Louisiana Supreme Court’s decision in State v. Sepulvado, 367 So.2d 762 (La.1979), which interpreted Article I § 20 of the 1974 Louisiana Constitution as allowing for appellate review for excessiveness of sentences imposed within the statutory limits. As an aid to the trial court in its function of imposing sentence and to the appellate court in reviewing sentences for excessiveness, there exists LSA-C.Cr.P. art. 894.1. State v. Douglas, 389 So.2d 1263 (La.1980). That article lists certain mitigating circumr stances which, while not controlling the trial judge’s discretion, are to be considered in imposing sentence.

Defendant does not allege that the sentencing judge failed to consider art. 894.1. Rather, he has chosen to cite other appellate cases and their respective sentences for the proposition that his sentence was excessive.

When we find that the sentencing, guidelines have been adequately considered, our standard of review is stated as follows:

“[a] sentence will not be set aside as excessive absent manifest abuse of the trial judge’s sentencing discretion. State v. Spencer, 374 So.2d 1195 (La.1979); State v. Sepulvado, supra. 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. Bonanno, 384 So.2d 355 (La.1980); State v. Goode, 380 So.2d 1361 (La.1980).”

State v. Smack, 425 So.2d 737, 740 (La. 1983).

We do not find that six years at hard labor and a $3,500.00 fine for the crime of distribution of marijuana under the instant facts shocks our sense of justice.

Under the offense to which defendant pled guilty, he was subjected to both a possible ten year term of imprisonment at hard labor and to a potential fine of $15,-000.00. LSA-R.S. 40:967(B)(3). He was, therefore, sentenced to slightly over one-half of the available term of imprisonment and to approximately one-fourth of the fine he could have been required to pay. This being true, we need not determine that defendant was the worst possible offender and that his offense was the worst possible under the applicable statute. State v. Telsee, 425 So.2d 1251 (La.1983); State v. Sepulvado, supra.

Defense counsel wishes us to primarily consider the defendant’s lack of prior criminal conviction record and the small amount of marijuana which he sold to the agent. The trial court was also aware of the small amount present during the illegal transaction to which defendant pleaded guilty. However, we note that, in individualizing the sentence to the offender, he correctly considered the overall scope of defendant’s actions and that the single sale to the undercover agent did not represent his only drug activity. State v. Landos, 419 So.2d 475 (La.1982). We have been referred to several cases involving small amounts of controlled dangerous substances, wherein the Supreme Court has remanded for resentencing due to exces-siveness. We observe that comparison between the defendant’s punishment and that meted to other offenders of similar offenses is a factor to consider when reviewing sentences for excessiveness. State v. Telsee, supra. In comparing those other offenders and their punishments, we discover significantly distinguishing facts to support the trial court’s imposition of a six year term of imprisonment. We also note the Supreme Court’s affirmance of two concurrent six year terms for distribution of marijuana in State v. Trahan, 412 So.2d 1294 (La.1982). That defendant was a first time offender in a factual scenario somewhat similar to the one at hand.

The trial court in the case subjudice gave the following written reasons in support of the sentence imposed:

(1) Defendant had no prior criminal conviction record and was 47 years of age;
(2) Defendant was unmarried (but allegedly was planning to remarry his former wife of 23 years) and not supporting anyone;
(3) Defendant was unemployed and likely to continue in his drug dealings in order to support himself;
(4) Defendant’s store had been used as a center for drug distribution, which defendant had both encouraged and profited from;
(5) Defendant had been responsible for his son’s and Annie Lewis’ drug involvement, and defendant was an “active, cleverly disguised, commercial drug pusher;”
(6) Defendant admitted that he had used marijuana, cocaine and speed, and the medical evidence presented by defendant indicates that he was a chronic alcoholic;
(7) There was no justification for defendant’s acts, and defendant’s poor health was caused by his abuse of alcohol and would probably lead to his returning to the use and distribution of drugs;
(8) Defendant’s criminal influence had rendered irreparable harm to both his son and Lewis; and
(9) Defendant would be eligible for parole in two years. LSA-R.S. 15:574.4(A).

In consideration of defendant’s health problems, the trial court suspended execution of the sentence subject to defendant’s recuperation from scheduled major surgery. The lower court further opined that the controlled environment of incarceration would ensure the diet and abstention from alcohol and illicit drugs, which defendant required, and that this would best prevent defendant’s return to illegal drug activity. These considerations convince us that defendant will not be subjected to “the purposeless and needless imposition of pain and suffering_” State v. Telsee, supra; State v. Sims, 410 So.2d 1082 (La.1982).

For the reasons assigned, the conviction and sentence are affirmed.

AFFIRMED.

      . At the time of the offense charged, marijuana was classified as a Schedule II controlled dangerous substance, and distribution of marijuana was properly punishable under LSA-R.S. 40:967(A)(1).

      .Bingo was charged with distribution of marijuana and sentenced to 42 months at hard labor. Lewis’ appeal is presently pending before this court (CR82-618), but she was sentenced to three concurrent terms of six years at hard labor after having pled guilty to two charges of distribution of marijuana and methamphetamine and one charge of possession with intent to distribute marijuana.

      . This interpretation of our Constitution has not gone unchallenged. See: State v. Goodman, 427 So.2d 529 (La.App. 3rd Cir.1983) (Judge Domengeaux, concurring).

      . Indeed, we observe that the trial court did adequately comply with the guidelines of art. 894.1, and the record sufficiently reveals his sentencing criteria.

      . The presentence investigation report reveals that defendant had been arrested several times for illegal possession of firearms, but never prosecuted on those arrests.

      . State v. Grey, 408 So.2d 1239 (La.1982); State v. Jones, 398 So.2d 1049 (La. 1981); State v. Forshee, 395 So.2d 742 (La. 1981).


author: LABORDE, Judge.

text:
    STATE of Louisiana, Plaintiff-Appellee, v. Annie Louise LEWIS, Defendant-Appellant.
    No. CR82-618.
    Court of Appeal of Louisiana, Third Circuit.
    June 29, 1983.

      J.J. McKernan, Baton Rouge, Camille F. Gravel, Jr., Gravel, Robertson & Brady, Alexandria, for defendant-appellant.
    Speedy 0. Long, Dist. Atty., Dan B. Cor-nett and Norris Dale Jackson, Asst. Dist. Attys., Jena, for plaintiff-appellee.
    Before FORET, CUTRER and LA-BORDE, JJ.
   LABORDE, Judge.

Defendant, Annie Louise Lewis, was charged by separate bills of information with two counts of distribution of a controlled dangerous substance (CDS) and with one count of possession with intent to distribute a CDS. Defendant pleaded guilty as charged on each of the three offenses and, subsequent to the preparation of a presentence investigation report and a pre-sentence hearing, she was sentenced equally on all three counts to terms of six years at hard labor, the sentences to run concurrently, a fine of $1,200.00 on each count (a total of $3,600.00) and court costs. Defendant has upon this appeal perfected seven assignments of error. These assignments allege that the sentences imposed are unconstitutionally excessive, that the trial court failed to properly follow the guidelines of LSA-C. Cr.P., art. 894.1, and that the trial court gave erroneous conclusions and reasons in imposing the sentences.

FACTS

In early April, 1981, the Sheriff’s Office in LaSalle Parish was conducting an investigation into reported illegal drug activity. Pursuant to that investigation, two officers from the Alexandria Police Department were enlisted as undercover agents. One location, suspected of involving drug activity, was Brewer’s Grocery. The agents made contact at that store with Benny C. Brewer and defendant, who then operated a small garden store adjacent to Brewer’s Grocery and who was, also, living with Brewer. The agents were told that “Bingo” Brewer could supply them with illegal drugs, and at some time prior to April 15, 1981, “Bingo” did sell the agents marijuana.

On April 15,1981, the agents saw defendant at the residence of a common acquaintance. Defendant summoned one of the agents to her car and sold him a bag of marijuana for $70.00. According to that agent, he had discussed on several occasions the possibility of purchasing larger amounts of both marijuana and cocaine from defendant. Defendant denied that she had ever offered to sell the agents large amounts of CDS. And on April 22, 1981, while at Brewer’s Grocery, the same agent was asked by defendant if he would like to purchase one gram of methamphetamine for $115. He agreed to do so, and the sale was consummated.

A warrant for defendant’s arrest was subsequently executed on April 27, 1981, while she was attending the grocery store. In a search of defendant’s personal effects at the Sheriff’s Office, four small packets of marijuana and a .38 caliber pistol were seized from her purse. Those four packets are the basis for the conviction of possession of njarijuana with intent to distribute.

Defendant pleaded guilty to all three charges and was sentenced to three concurrent sentences of six years at hard labor, a $1,200.00 fine on each count plus court costs. Upon this appeal, defendant contends that the trial court erred in imposing an excessive sentence in violation of LSA-Const. art. I, § 20, in its application of LSA-C.Cr.P. art. 894.1, and in reaching erroneous conclusions, which purported to substantiate the sentences imposed. Due to the interrelated nature of defendant’s seven assignments of error, we choose to address them conjunctively.

Defendant alleges that her exposure to a possible six-year term of imprisonment is unconstitutionally violative of Art. I, § 20 of the Louisiana Constitution of 1974. That provision in part provides that:

“No law shall subject any person to euthanasia, to torture, or to cruel, EXCESSIVE, or unusual punishment.” (Emphasis supplied.)

The Louisiana Supreme Court in State v. Sepulvado, 367 So.2d 762 (La.1979), held that Article I, § 20 created the power of appellate review for excessiveness of sentences imposed within the statutory guidelines. Sentences have been deemed excessive when the penalty imposed, in light of the harm suffered by society, is so disproportionate to the crime committed as to shock the senses of justice. State v. Bonanno, 384 So.2d 355 (La.1980).

Article 894.1 of the Code of Criminal Procedure aids both the trial judge in the exercise of his broad discretion and this Court in reviewing sentences for excessiveness. That article reads as follows:

“A. When a defendant has been convicted of a felony or misdemeanor, the court should impose a sentence of imprisonment if:
(1) There is an undue risk that during the period of a suspended sentence or probation the defendant will commit another crime;
(2) The defendant is in need of correctional treatment or a custodial environment that can be provided most effectively by his commitment to an institution; or
(3) A lesser sentence will deprecate the seriousness of the defendant’s crime.
B. The following grounds, while not controlling the discretion of the court, shall be accorded weight in its determination of suspension of sentence or probation:
(1) The defendant’s criminal conduct neither caused nor threatened serious harm;
(2) The defendant did not contemplate that his criminal conduct would cause or threaten serious harm;
(3) The defendant acted under strong provocation;
(4) There was substantial grounds tending to excuse or justify the defendant’s criminal conduct, though failing to establish a defense;
(5) The victim of the defendant’s criminal conduct induced or facilitated its commission;
(6) The defendant has compensated or will compensate the victim of his criminal conduct for the damage or injury that he sustained;
(7) The defendant has no history of prior delinquency or criminal activity or has led a law-abiding life for a substantial period of time before the commission of the instant crime;
(8) The defendant’s criminal conduct was the result of circumstances unlikely to recur;
(9) The character and attitudes of the defendant indicate that he is unlikely to commit another crime;
(10) The defendant is particularly likely to respond affirmatively to probationary treatment; and
(11) The imprisonment of the defendant would entail excessive hardship to himself or his dependents.
C. The court shall state for the record the considerations taken into account and the factual basis therefor in imposing sentence.”

In imposing sentence, the trial judge is called upon to individualize the sentence to both the offender and the offense.

Although Article 894.1 aids the trial judge in the exercise of his function, a less than rigid application of that article’s provisions does not necessitate a remand. State v. Landos, 419 So.2d 475 (La.1982); State v. Hogan, 403 So.2d 1210 (La.1981). Where the record sufficiently indicates that the trial court has considered the proper sentencing criteria, although strict compliance with Article 894.1 was not achieved, the Supreme Court has held that an adequate excessiveness review is possible without the need for remanding the case. State v. Sims, 410 So.2d 1082 (La.1982); State v. Cox 369 So.2d 118 (La.1979).

The trial judge is afforded wide discretion when imposing sentences within the statutory limits, which will not be disturbed in the absence of a manifest abuse of that discretion. State v. Reed, 409 So.2d 266 (La.1982). However, the record must indicate that the trial court properly considered mitigating circumstances, and the failure to do so will result in a remand for resentenc-ing. State v. Dura, .414 So.2d 1243 (La. 1982); State v. Ezernack, 408 So.2d 907 (La.1981).

In the instant case, it appears that the lower court adequately complied with the sentencing guidelines, and the record is replete with its considerations and reasoning. This being true, the following standard of review is applicable.

“Given compliance with La.Code Crim.P. art. 894.1, a sentence will not be set aside as excessive absent manifest abuse of the trial judge’s sentencing discretion. State v. Spencer, 374 So.2d 1195 (La.1979); State v. Sepulvado, supra. 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. Bonanno, 384 So.2d 355 (La.1980); State v. Goode, 380 So.2d 1361 (La.1980).”

State v. Smack, 425 So.2d 737, 740 (La. 1983).

In exercising our appellate function, we must be ever mindful that we should not simply substitute our subjective judgment for that of the trial judge, who was aware of the evidence that only a fact finder, who was present during the evidentiary showing, would know. Rather, we must determine whether a manifest abuse of discretion has occurred. State v. Douglas, 389 So.2d 1263 (La.1980).

The crime of distribution of a CDS is a serious crime for which the legislature has imposed stiff penalties. In the instant case, ten years was the possible imprisonment term on each of the first two counts. Defendant made two sales (one of marijuana and one of methamphetamine) within one week to the same undercover agent. Because the offenses were based on different transactions, defendant could have been subject to consecutive sentences totaling twenty years. LSA-C.Cr.P. art. 883. Each of the two sales involved one packet of contraband. The third charge, possession of marijuana with intent to distribute, ensued from the seizure of four packets of marijuana from defendant’s purse on the day of her arrest. As this occurred six days after defendant’s last sale to the agent, it is, also, arguable that the ten year possible prison term under Article 883 could have been ordered to be served consecutively with the other two sentences, thus exposing defendant to a possible imprisonment term of thirty years. The trial judge noted this possibility in imposing three concurrent sentences of six years each.

The trial court opined that defendant’s dependence on medication (anti-depressant and anti-psychosis drugs, which defendant had been using under her doctor’s orders for some time) made her unstable and likely to return to the use of illegal drugs. He also opined that a term of imprisonment would help defendant break her associations with her drug background. The trial judge, additionally, stated that he believed defendant’s CDS sales were indiscriminate. In support of this, one of the undercover agents had testified that defendant discussed selling larger amounts of cocaine and marijuana to him. Defendant denied making any such statements, saying that the two sales were the only ones she had ever made, and that the agents had pressured her in each of those instances. This is controverted by the purchasing agent’s testimony. Additionally, it is interesting to note that the trial court’s stated reasons for imposing a term of imprisonment appear to be for the benefit of defendant. He stated that the availability of medical care while defendant was incarcerated would insure that she receive the proper diet and medi-cátion. He further stated that it (imprisonment) would remove her availability to illegal drugs and alcohol.

After a thorough review of the record, we are unable to conclude that the trial judge abused his wide discretion in imposing this sentence. State v. Abercrumbia, 412 So.2d 1027 (La.1982). The penalty imposed is not so disproportionate to the crime as to shock our sense of justice. Therefore, we do not find defendant’s sentence to be unconstitutionally excessive.

As stated in footnote 2, a portion of the sentence imposed is erroneous. The trial court, during sentencing, ordered that defendant’s driving privileges be canceled. Although this portion of the sentence has not been appealed, illegal sentences are errors patent for purposes of LSA-C.Cr.P. art. 920. State v. Jones, 341 So.2d 3 (La. 1976). The only possible authority for the lower court’s sentence may be found in LSA-R.S. 32:414(B)(3) which reads as follows:

“B. The department shall forthwith revoke the license of any person, for a period of twelve months, upon receiving satisfactory evidence of the conviction or of the entry of a plea of guilty and sentence thereupon or of the forfeiture of bail of any such person charged with any of the following crimes:
⅝8 * * * * *
(3) Any felony in the commission of which a motor vehicle is used; ”

“The department” refers to the Department of Public Safety. LSA-R.S. 32:401(2). Apparently, the trial court believed that defendant’s sale of the marijuana to the undercover agent from her car empowered him to indefinitely cancel her driving privileges. No authority for this action can be found. Therefore, the portion of defendant’s sentence which suspends her driving privileges is reversed and set aside.

For the foregoing reasons, defendant’s sentence is reversed and set aside in so far as it suspends her driving privileges and in all other respects, the sentence is affirmed. All costs are assessed to defendant-appellant.

REVERSED IN PART, AFFIRMED IN PART AND RENDERED.

      . Legislative enactments, subsequent to the dates of the instant offenses, have reclassified marijuana from a Schedule II to a Schedule 1 CDS. Acts 1981, No. 800, § 4, effective August 2, 1981. Therefore, distribution and possession with intent to distribute marijuana are now prohibited by LSA-R.S. 40:966(A)(1). With the exception of the words “may be sentenced to” (emphasis added) in R.S. 40:967(B)(3), which refers to the possibility of a fíne, the penalty provision now applicable in LSA-R.S. 40:966(B)(2) is unchanged.

      . A .38 caliber pistol, seized from defendant’s purse pursuant to her arrest, was ordered forfeited, and defendant’s driving privileges were indefinitely suspended but this portion of the sentence has not been appealed. The former penalty is apparently appropriate under LSA.C. Cr.P. art. 891, but the latter is an illegal sentence, which will be discussed infra.

      . The relationship between defendant and Brewer has since broken, and defendant has married a Thomas E. Fairbanks, who works as a carpenter and operates a service station in Jena.

      . As a result of this investigation, “Bingo” Brewer, AKA Bennie Joe Brewer, pled guilty to distribution of marijuana and was sentenced to 3l/2 years at hard labor. Bennie C. Brewer, with whom defendant had been living, was also sentenced on a charge of distribution of a CDS to six years at hard labor. His appeal is presently lodged before this court. State v. Brewer, 436 So.2d 631.

      . The trial court correctly noted that defendant would be eligible for parole in two years. LSA-R.S. 15:574.4(A).

      . This reading of the state constitution has not gone unchallenged. See, e.g., State v. Goodman, 427 So,2d 529 (La.App. 3rd Cir.1983) (J. Domengeaux, concurring).

      . Defendant admitted that she had smoked marijuana to alleviate her severe health problems. Although not issued under a prescription, the record tends to support defendant’s contentions that the marijuana helped her stomach problems. In fact, the trial judge believed defendant used the marijuana for health reasons.


text:
    STATE of Louisiana, Plaintiff-Appellee, v. Earnest Felton GRAY, Defendant-Appellant.
    No. CR82-694.
    Court of Appeal of Louisiana, Third Circuit.
    June 29, 1983.
    Writ Denied Oct. 7,1983.
    Jimmie C. Peters, Jena, for defendant-appellant.
    Joseph P. Beck, II, Dist. Atty., Colfax, for plaintiff-appellee.
    Before FORET, CUTRER and LA-BORDE, JJ.
   LABORDE, Judge.

Defendant, Earnest Felton Gray, was charged by bill of information on March 25, 1982, with theft of five head of cattle, a violation of LSA-R.S. 14:67.1. He was tried by jury and found guilty as charged. The trial court sentenced him to one year at hard labor. Defendant appeals his conviction and sets forth the following two assignments of error:

(1) That defendant’s motion for mistrial should have been granted because of alleged improper conduct by the state.
(2) That the state failed to prove defendant’s guilt beyond a reasonable doubt.

We find no merit to either of defendant’s assignments. Therefore, defendant’s conviction is affirmed.

At the time of his arrest, defendant was 60 years old and made his living by transporting cattle to auction for local farmers in the Grant Parish area. On January 30, 1982, he hauled six head of cattle to the Hodges’ Auction Barn in Grant Parish and registered them with the Brand Commissioner under the fictitious names of Benny and T. Cotton. Hodges’ Auction Barn paid defendant with two checks made out for $577.50 and $1,092.92, respectively. The payees were listed as Benny and T. Cotton.

Also present at the auction that day was Huey Sullivan, who was surprised to discover the presence of one of his missing cows. Sullivan had not authorized anyone to bring the cow to auction and immediately suspected foul play. A consultation with the Brand Inspector revealed that the cow had been brought in by defendant and was registered under the names of Benny and T. Cotton. Sullivan took the matter up with defendant who told him that he had brought the cow in at the request of two black males from LaSalle Parish whose truck had broken down. Not satisfied with defendant’s story, Sullivan contacted Harold Hawthorne the next morning. He had seen some of Hawthorne’s cattle at the auction and had suspected for some time that his cow had strayed into Hawthorne’s herd.

Hawthorne confirmed Sullivan’s suspicion that his stray had been grazing with Hawthorne’s herd at Little River. However, Hawthorne said that he had not authorized anyone to take any of his cattle from that area to the auction. The cattle that he had tagged for auction were five calves he had penned up next to his house. He testified that he had instructed the defendant to come by his house and pick up the calves, but that defendant never arrived.

The two men quickly proceeded to Hawthorne’s feeder pen at Little River whereupon they discovered the absence of six head of cattle; Sullivan’s stray and five head belonging to Hawthorne. After observing fresh tire tracks leading to the pen, the men left for Hodges’ Barn. They found two of Hawthorne’s cows still at the barn but discovered that three head had already been shipped out. The missing cattle were described to the livestock inspector who tracked them down and returned them to Hawthorne. An investigation was conducted by the Hodges’ Barn management which revealed that all six head of cattle taken from Hawthorne’s pen had been brought in by defendant and registered under the names of Benny and T. Cotton. Hawthorne subsequently filed a complaint with the Grant Parish Sheriff’s Department. The investigation which ensued revealed that two days after the auction defendant cashed the two checks made out to Benny and T. Cotton at a bank in Jena. The checks bore the endorsement of the fictitious payees. Prom the two checks which totaled $1,670.42, defendant applied $978.00 toward a. personal note, and deposited $311.00 into his checking account. Defendant took the remaining $380.79 in cash. He was arrested five days later on February 6, 1982, one week after bringing the cattle to market. During the interim period between the sale and his arrest, the defendant did not make any effort to tender any payment to Hawthorne or Sullivan. Defendant’s only statement upon arrest was, “I made a mistake and that’s all I’m gonna say.”

Defendant’s defense at trial was that the entire matter was but a misunderstanding. He testified that Mr. Hawthorne had instructed him to take the Little River cattle to the auction and register them under a fictitious name. Mr. Hawthorne was 72 years old, defense counsel explains and obviously forgot about his instructions. Defendant admitted that he took all six cows from the Little River feeder pen but said he was unaware at the time that one of their number included Mr. Sullivan’s stray. The fact that he cashed the checks and applied part of the proceeds toward a personal loan and account was not indicative of his guilt, he explained, for it was routine for him to cash the checks issued to the seller. At the time he cashed the checks made out to the fictitious Cottons he had more than enough cash in his pocket to pay off Mr. Hawthorne and therefore saw no problem with applying the checks toward his own personal interests. That he did not immediately pay off Mr. Hawthorne he argued, was of no consequence, for it was common practice for him to hold the proceeds for up to a couple of weeks. He explained that his statement at the time of his arrest that he had made a mistake was in reference to registering the cattle under fictitious names. He said that he fabricated the entire story about the Cottons in order to protect Mr. Hawthorne.

Defendant first contends that the trial court erred in denying his motion for mistrial due to alleged improper conduct on the part of the district attorney. Specifically, defendant asserts (1) that the state failed to fully comply with his motion for discovery by withholding information concerning in-culpatory and exculpatory statements made by defendant; (2) that the state misled the defendant by informing him that it had certain documentary evidence and, on the day of the trial, reversed itself and subpoenaed the same evidence from defendant; (3)that the state employed improper questioning techniques such that the defendant was forced to continually object to protect his interest; but by doing so, developed prejudice in the mind of the jury.

The rules of discovery, codified in LSA-C.Cr.P. art. 716 et seq., were intended to eliminate unwarranted prejudice to the defendant. State v. Toomer, 395 So.2d 1320 (La.1981). Violations of an accused’s statutory rights may be sanctioned. LSA-C. Cr.P. art. 775 states in part:

“Upon motion of a defendant, a mistrial shall be ordered, and in a jury case the jury dismissed, when prejudicial conduct in or outside the courtroom makes it impossible for the defendant to obtain a fair trial ...”

Failure of the state to comply with the rules of discovery does not of itself warrant reversal of the defendant’s conviction, for LSA-C.Cr.P. art. 921 states:

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

Consequently, the relevant inquiry in this case is whether the defendant suffered prejudice to any substantial right. An examination of the record does not indicate to us that any significant right of defendant was impaired as a result of improper conduct on the part of the state. Although the state may not have fully complied with defendant’s discovery motion, defendant’s objections regarding the admission into evidence of statements not included in the state’s answer to the discovery motion were argued out of the presence of the jury and sustained each time. In addition, the trial judge admonished the jury on occasion not to draw any inferences regarding the excluded testimony.

We also conclude that a mistrial was not warranted by the State’s failure to disclose to defendant that it did not have the cancelled checks in its possession and then subpoenaing the same from defendant’s on the day of the trial.

The checks issued in payment for the stolen cattle were never at issue in this case. Defendant freely admitted that he received and cashed them. For this reason, we fail to see how defendant could have suffered any prejudice by the state’s conduct.

Finally, defendant’s argument that his frequent objections at trial- prejudiced him in the minds of the jury is without merit. This argument, which is at most speculative, is not supported by the record. The record shows that defendant’s frequent objections at trial were not a product of any bad faith or wilful impropriety on the part of the state. Therefore, a mistrial on these grounds is not warranted.

Defendant’s second contention is that the facts presented by the state did not establish the elements necessary for proof beyond a reasonable doubt. More specifically, defendant maintains that the state failed to prove that he intended to permanently deprive the owners of the cattle at issue.

To successfully prosecute an accused for cattle theft, the state must prove the following elements of LSA-R.S. 14:67.1 beyond a reasonable doubt:

(1) a misappropriation or taking of livestock belonging to another,
(2) either without the consent or by means of fraudulent conduct,
(3) with an intent to deprive the other permanently of the livestock.

See Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). LSA-R.S. 14:67.1 adds that:

“Transportation of livestock to a slaughterhouse or an auction sale barn and assignment in a record book in a name other than that of the owner shall also be theft of livestock. An intent to deprive the owner permanently of funds derived from sale is essential."

From our review of the record, we conclude that the testimony and evidence presented by the state, especially that of Mr. Hawthorne, establishes defendant’s guilt beyond a reasonable doubt. In order to accept defendant’s defense that the whole matter was a “misunderstanding”, we would have to disregard or reject the testimony of the state’s chief witness, Mr. Hawthorne. The jury heard and evaluated the conflicting testimony of defendant and Mr. Hawthorne. Their determination that defendant intended to permanently deprive Mr. Hawthorne and Mr. Sullivan of their cattle was based upon the credibility of three witnesses. This determination is entitled to great weight. State v. Klar, 400 So.2d 610 (La.1981). Finding that the jury’s decision is not clearly contrary to the evidence contained in the record, we refuse to disturb the jury’s finding of guilt.

For these reasons, defendant’s conviction is affirmed at his costs.

AFFIRMED.


author: STOKER, Judge.

text:
    STATE of Louisiana, Plaintiff-Appellee, v. Joseph Russell. SHEA, Defendant-Appellant.
    No. CR82-746.
    Court of Appeal of Louisiana, Third Circuit.
    June 29, 1983.
    Writ Denied Oct. 17,1983.

      Lester A. Robertson, Lake Charles, for defendant-appellant.
    Jerry G. Jones, Dist. Atty. and Jennifer Jones, Asst. Dist. Atty., Cameron, for plaintiff-appellee.
    Before STOKER, DOUCET and KNOLL, JJ.
   STOKER, Judge.

Defendant, Joseph Russell Shea, appeals as excessive a sentence of the trial court of nine years imprisonment with the Louisiana Department of Corrections. Defendant plead nolo contendere to one count of aggravated criminal damage to property in violation of LSA-R.S. 14:55.

The facts leading to defendant’s arrest and conviction are as follows:

On the night of April 2, 1982, Shea’s co-defendant, Donald Freeze, was informed by his girlfriend that she had been accosted and beaten by two men in a pickup truck. Freeze enlisted the aid of defendant and another man. The party went to the home of Freeze, where Freeze armed himself with a .357 caliber revolver and armed defendant with a 16-gauge shotgun. Freeze and his group then set out to find his girlfriend’s assailants.

The Freeze party sighted another party of individuals traveling down a road in a pickup truck and brought them to a halt by ramming their vehicle from the rear. The driver of the pickup truck jumped out to investigate and discovered Freeze and defendant pointing their weapons at him. There were three other passengers inside the truck’s cab, but apparently the driver was the only one involved in the alleged assault of Freeze’s girlfriend. The driver stepped back inside his truck but was ordered to get out of his vehicle along with his passengers. The driver ignored the order and sped away. As the truck moved forward, Freeze fired a salvo from his .357 into the left side of the truck. Defendant Shea followed suit by firing two bursts from the shotgun into the truck’s right door. The blast from defendant’s shotgun seriously injured the leg of one of the passengers, a teenage boy. Freeze and defendant were apprehended shortly thereafter and taken into custody. Defendant’s co-defendant Freeze was tried by a jury and was convicted of the same offense as that to which Shea pleaded. Each was sentenced to nine years imprisonment.

Defendant has a long criminal history insofar as his “rap sheet” is concerned, but the record indicates only two convictions. The convictions occurred in 1964 for forging money orders, and Shea was sentenced to two years imprisonment on each conviction.

In imposing sentence, the trial judge not- • ed many factors, among them the outra-geousness of defendant’s conduct. The trial judge observed that defendant had no personal interest in the matter, yet he fired the shot which resulted in the injury. The judge stated that defendant was a follower, a man easily influenced by others who could benefit from a custodial environment. He said there were no mitigating factors which would operate to defendant’s benefit and concluded that a sentence of nine years was necessary to reflect the seriousness of the crime.

The defendant assigns as error the trial judge’s failure to comply with LSA-C.Cr.P. art. 894.1 sentencing guidelines and the imposition of a constitutionally excessive sentence.

Article I, § 20 of the 1974 Louisiana Constitution prohibits the imposition of excessive punishment. A sentence may be excessive either by reason of its length or because the circumstances warranted a less onerous sentencing alternative. State v. Sepulvado, 367 So.2d 762 (La.1979). In determining whether a penalty is excessive, we are abjured to consider “the punishment and the crime in light of harm to society caused by its commission and determine whether the penalty is so disproportionate to the crime committed as to shock our sense of justice.” State v. Bonanno, 384 So.2d 355, 358 (La.1980).

In our review we must give consideration to the sentencing guidelines codified in LSA-C.Cr.P. art. 894.1. These factors, which the sentencing judge must consider before sentence is imposed, allow the trial court to individualize the penalty and adapt it to the offender as well as the offense. The trial court need not articulate every aggravating and mitigating circumstance, but the record must reflect that the court adequately considered sentencing guidelines in particularizing the sentence to the defendant. State v. Lathers, 414 So.2d 678 (La.1982), and State v. McDonald, 414 So.2d 735 (La.1982). Because of the wide discretion afforded the trial court in imposing sentence, a sentence within statutory limits will not be set aside as excessive in absence of a manifest abuse of discretion. State v. Abercrumbia, 412 So.2d 1027 (La. 1982).

The maximum sentence that may be imposed for violation of LSA-R.S. 14:55 is a fine of $10,000 and 15 years imprisonment with or without hard labor, or both.

Considering the principles set forth above as to whether or not the sentence is constitutional, we cannot say that the sentence of nine years imprisonment shocks our sense of justice. As articulated by the trial court, the conduct of defendant in deliberately arming himself and deliberately firing shotgun blasts into a truck occupied by human beings is outrageous. The conduct of defendant resulted in physical injury to a human being.

Defendant contends that the court failed to consider as a mitigating factor that defendant did not contemplate that his criminal conduct would cause or threaten serious harm. See C.Cr.P. art. 894.1B(2). This argument has no merit. In firing his weapon into the cab of a pickup truck occupied by four individuals, defendant must have contemplated that his criminal conduct might cause serious harm. Further, the mitigating factors set out in Section B of the cited statute do not control the discretion of the court but are to be accorded weight. The opening portion of Section B reads:

“The following grounds, while not controlling the discretion of the court, shall be accorded weight in its determination of suspension of sentence or probation.”

With reference to defendant’s awareness of the consequences of his actions, the trial court specifically referred to the fact that it was defendant’s conduct which caused the injury to the victim.

Defendant also contends that the mitigating factor referred to in subparagraph B(4) of the sentencing guideline statute should have been considered by the trial court. This mitigating factor comes into play if there is some excuse or justification for defendant’s criminal conduct. We see no excuse or justification for defendant’s conduct, and the trial court sufficiently articulated the consideration of this factor at the sentencing proceeding.

The record reflects that the trial judge adequately considered the factors set forth in the statute. Defendant was sentenced to nine years, although he could have been fined up to $10,000 and imprisoned for 15 years.

After considering the circumstances of this case and all other pertinent factors, we are not persuaded that this sentence was disproportionate to the severity of his crime. The trial judge did not abuse his discretion.

DECREE

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

AFFIRMED.

      . Freeze appealed his conviction. His appeal was heard before another panel of this Court and is dealt with in a separate opinion captioned State v. Freeze, 438 So.2d 1340 (La.App. 3rd Cir.1983).


author: YELVERTON, Judge.

text:
    STATE of Louisiana, Plaintiff-Appellee, v. Lloyd R. LACHNEY, Defendant-Appellant.
    No. CR82-754.
    Court of Appeal of Louisiana, Third Circuit.
    June 29, 1983.
    Writ Denied Oct. 17,1983.

      Marion A. French, Alexandria, for defendant-appellant.
    R. Greg Fowler, Asst. Dist. Atty., Alexandria, for plaintiff-appellee.
    Before DOMENGEAUX, GUIDÉY and YELVERTON, JJ.
   YELVERTON, Judge.

Defendant, Lloyd Lachney, pleaded guilty to possession of stolen things [LSA-R.S. 14:69(B)(2) ] amended from simple burglary. His guilty plea was entered with the reservation of the right to appeal an earlier adverse ruling on a motion to suppress evidence. This appeal presents for our review the single issue of whether the trial court’s denial of the motion to suppress was correct. Appellant contends that the affidavit supporting the search warrant failed to recite facts establishing probable cause for its issuance.

On June 18,1980, a district judge issued a search warrant for the search of unit # 53 of the Southwood Mini-Storage Warehouse in Alexandria, Louisiana. The execution of the search warrant resulted in the seizure of stolen goods. This is the evidence sought to be suppressed.

The affidavit supporting the warrant was made by a deputy sheriff and recites in essence the following facts: At approximately 11:40 A.M. on June 17, 1980, Mrs. Opel Giles reported to the Rapides Parish Sheriff’s Office that a burglary had occurred at 23 Glen Parkway, Cotile Lake in Rapides Parish. She stated that she had closed and locked the house at 7:00 P.M. on June 16, 1980. Earlier that same morning at approximately 9:15 A.M. the affiant, Deputy William Hilton, had observed a large multi-wheeled, silver, white and orange “U-Haul” truck parked directly in front of that house. After the complaint was received he went to the scene and noticed fresh damage to a portion of the roof and its faceboard. The faceboard was painted green. Orange paint was observed on the damaged portion of the roof. The areas corresponded with the area in which Deputy Hilton had first observed the U-Haul truck. Mrs. Giles’ description of the property taken indicated that the items could only have been moved via a large truck. At 3:00 P.M. June 17 Deputy Hilton located the truck at the U-Haul office and identified it by its size, color, name and damaged condition. He observed that the particular damage on the truck corresponded with the damage to the burglarized house. Paint scrapings the same color as the truck were found on the damaged portion of the house. Paint the color of the damaged portion of the house was found on the truck. Deputy Hilton had obtained a copy of the truck rental contract which he attached to his affidavit. The truck had been rented by Lloyd Lachney at 6:30 P.M. on June 16,1980. The U-Haul dealer stated that Lloyd Lachney returned the truck on June 17 and was picked up by one Lowell W. Connella [a co-defendant in this case].

Deputy Hilton determined from Marie Lachney that Lloyd Lachney lived with Connella at the Alexandria Apartments. On June 17 the manager of those apartments told him that the truck had been parked the night before in front of the unit occupied by Lachney and Connella.

Later on the 17th Connella told Hilton that he had been with Lachney when Lach-ney returned the U-Haul truck. Connella said he would have Lachney contact Hilton. Lachney did not contact Hilton. On June 18 Deputy Hilton obtained and executed an arrest warrant for Lachney charging him with the burglary of the residence at Cotile Lake. Lachney was arrested at Connella’s fire gutted home which the two were in the process of repairing.

Deputy Hilton then recited in his affidavit that, based on his experience as a veteran police officer, he knew that burglars used self-contained storage units as a place of safe-keeping for stolen property. He began contacting self-storage warehouse businesses and was informed by Gerald Taylor of Southwood Mini-Storage in Alexandria that Connella had rented Unit 53 on June 17. Later on June 18 Deputy Hilton requested a consent to search from Connella which was refused.

It was on the basis of the above recited facts and circumstances, all of which were contained within the four corners of the affidavit, that the magistrate issued the warrant.

Article 1, Section 5 of the Louisiana Constitution of 1974 requires that warrants to search or seize shall only be issued where there exists probable cause supported by an oath or affirmation. Conformably, La.C. Cr.P. art. 162 provides that a search warrant may issue only upon probable cause established to the satisfaction of the judge, by the affidavit of a credible person, reciting facts establishing the cause for issuance of the warrant.

Probable cause exists when the facts and circumstances within the affiant’s knowledge, and of which he has reasonably trustworthy information, are sufficient unto themselves to warrant a person of reasonable caution to believe that an offense has been committed. State v. Bruno, 427 So.2d 1174 (La.1983). The factual information which is the foundation for the determination of probable cause must be contained in the affidavit. State v. Flood, 301 So.2d 637 (La.1974), cert. denied, 421 U.S. 916, 95 S.Ct. 1577, 43 L.Ed.2d 782 (1975). All that is required is that the affidavit, interpreted in a common sense and realistic manner, contain information which would warrant a person of reasonable caution to believe that the articles sought are located at the place to be searched. State v. Mena, 399 So.2d 149 (La.1981). Whether the affidavit establishes probable cause depends upon the facts and circumstances of each case. State v. Bruno, 427 So.2d 1174 (La.1983). The determination by a magistrate that an affidavit establishes probable cause should be paid great deference by reviewing courts. State v. Sierra, 338 So.2d 609 (La.1976).

Applying these principles, we find that the facts contained in the affidavit constitute an abundant showing of probable cause to believe that the stolen property would be found in Connella’s rented warehouse. The results of Deputy Hilton’s thorough police work were just as thoroughly reported in his affidavit. Interpreted in a common sense and realistic manner, the affidavit presents a scenario which in summary suggests that Lachney rented the U-Haul, kept it overnight at the apartment he shared with Connella, participated in the burglary and theft of household goods the next day, and stored the stolen property in a mini-storage unit rented by Connella before he and Connella returned the U-Haul to its owner. These facts and circumstances were sufficient to warrant a person of reasonable caution to believe that the property stolen would be found in the storage unit described in the warrant.

The ruling of the trial court denying appellant’s motion to suppress is affirmed.

AFFIRMED.


text:
    STATE of Louisiana, Plaintiff-Appellee, v. Lowell W. “Sonny” CONNELLA, Defendant-Appellant.
    No. CR82-755.
    Court of Appeal of Louisiana, Third Circuit.
    June 29, 1983.
    Writ Denied Oct. 17,1983.
    J. Michael Small and Kathrine Williamson, Small, Small, Williamson & Brocato, Alexandria, for defendant-appellant.
    R. Greg Fowler, Asst. Dist. Atty., Alexandria, for plaintiff-appellee.
    Before STOKER, DOUCET and KNOLL, JJ.
   STOKER, Judge.

Defendant, Lowell “Sonny” Connella, pleaded guilty to a charge of receiving stolen things having a value of more than $100 but less than $500, a violation of LSA-R.S. 14:69, expressly reserving his right to appeal the trial court’s rulings on his pretrial motions to suppress illegally seized evidence and to quash the indictment. See State v. Crosby, 338 So.2d 584 (La.1976). He was given a suspended sentence of two years in the custody of the Department of Corrections and placed on supervised probation for two years. He was fined $1,000 and ordered to make restitution to the victim as a condition of his probation. For reasons set out below, we affirm the trial court rulings on both pretrial motions.

FACTS

The burglary from which this charge arose was reported on June 17, 1980, at 11:40 a.m. Mrs. Opal Giles reported that furniture and other property had been stolen from a house she was just moving into.

After investigating, a Rapides Sheriff’s Department deputy obtained an arrest warrant for Lloyd Lachney, Connella’s roommate at that time. After further investigation, the deputy obtained a search warrant for a mini-warehouse rented the morning of the burglary by Connella. Upon searching the warehouse, most of the property reported stolen by Mrs. Giles was found.

Connella was initially charged by bill of information with simple burglary; however, that charge was dismissed upon the district attorney’s motion to dismiss the prosecution pursuant to LSA-C.Cr.P. art. 691. He was later charged in a new bill of information with receiving stolen things having a value in excess of $500.

After his pretrial motions were denied, Connella entered a plea of guilty to a charge of receiving stolen things having a value of more than $100 but less than $500. This appeal followed. The facts will be more fully dealt with below as they relate to the assignments of error.

MOTION TO SUPPRESS

The evidence sought to be suppressed is the property taken from the warehouse rented by Connella pursuant to the search warrant. Connella claims that the affidavit supporting the search warrant fails to set forth within its four corners sufficient probable cause to believe that the stolen items were contained in the warehouse.

Deputy William Hilton investigated the burglary and was the affiant for the affidavit supporting the warrant. The affidavit contains all details of his investigation which led to his seeking the warrant. A summary of facts contained in the affidavit is as follows.

Mrs. Giles reported the burglary at 23 Glen Parkway, Cotile Lake, at 11:40 a.m. on June 17, 1980. At 9:15 a.m. that same morning Deputy Hilton had observed an orange U-Haul truck parked in front of the house at 23 Glen Parkway. Upon investigating Mrs. Giles’ complaint, Deputy Hilton discovered orange paint on a freshly damaged portion of the roof and green face board of the house. He also noticed dual tire marks in approximately the same place he had seen the truck.

At 3:00 p.m. that same afternoon, Deputy Hilton located a truck at a U-Haul office similar to the one he had seen that morning with damage corresponding to the damage to the house. Orange paint found on the house matched that from the truck and green paint found on the truck matched that from the house. The truck had been rented on June 16, 1980, at 6:30 p.m. by Lloyd Lachney. The U-Haul manager said that Connella picked up Lachney when the truck was returned on June 17, 1980.

After learning that Connella and Lach-ney shared an apartment, Deputy Hilton found out from the manager of the apartment complex in which they lived that a U-Haul truck had been parked in front of their unit the entire night of June 16, 1980. The deputy spoke with Connella on June 17, asking him to have Lachney contact him. Having heard nothing from Lachney by the next day, Deputy Hilton obtained a warrant for his arrest. The arrest was made at Connella’s fire-damaged home where Lach-ney was working with Connella.

Apparently acting on his knowledge that stolen goods are often stored in warehouses, Deputy Hilton began contacting local self-storage warehouse businesses. He found that a unit in Alexandria had been rented by Connella on June 17, 1980, around 8:30 or 9:00 a.m. His request of Connella to search the warehouse was refused.

Based on the above summarized facts given in the affidavit, a search warrant for the warehouse rented by Connella was issued. Substantially all of the property reported stolen by Mrs. Giles was recovered from within.

The initial charge of simple burglary and the charge of receiving stolen things for which Connella was ultimately convicted arose out of the same incident and are based on the same evidence. Three trial judges have previously upheld the validity of the affidavit, Judge Mansour who issued the warrant, Judge Humphries who denied Connella’s motion to suppress filed while he was still under the bill charging simple burglary, and Judge Teekell who denied the motion to suppress under consideration here.

LSA-C.Cr.P. art. 162 provides in pertinent part:

“A search warrant may issue only upon probable cause established to the satisfaction of the judge, by the affidavit of a credible person, reciting facts establishing the cause for issuance of the warrant.”

It is well settled that “The facts establishing probable cause for a search warrant must be contained within the four corners of the affidavit.” State v. Feeback, 411 So.2d 10 (La.1982), State v. Poree, 406 So.2d 546 (La.1981). In order to show probable cause, the affidavit for the search warrant must state facts and circumstances within the affiant’s knowledge which are based on reasonably trustworthy information sufficient to support a reasonable belief that an offense has been committed and that evidence or the contraband may be found at the place searched. State v. Po-ree, supra.

Appellant in this case claims the affidavit fails to establish probable cause to believe that Connella was connected with the burglary or that the proceeds from the burglary would be found in the warehouse rented by him. We disagree. When considered alone, each of the facts v/hich link Connella to the crime is as consistent with innocence as with guilt. However, when considered in conjunction with each other, they are sufficient to support a reasonable belief that a burglary had occurred and that the stolen property would be found in the warehouse rented by Connella.

Affidavits in support of search warrants should be interpreted in a common sense and realistic fashion. State v. Johnson, 408 So.2d 1280 (La.1982). Connella’s renting of the warehouse on the day of the burglary just shortly before the U-Haul truck was observed at the house is sufficient, when considered along with other facts in the affidavit, to establish probable cause to believe that the stolen property would be located in the warehouse. The trial court properly denied the motion to suppress.

MOTION TO QUASH

Connella claims that prosecutorial misconduct deprived him of his right to a speedy trial and that his motion to quash the indictment on this ground should have been granted.

The procedural history of this matter leading up to the present appeal is somewhat complicated. On October 27,1980, the state filed a bill of information charging Connella with simple burglary in relation to the June 17 event. Connella pleaded not guilty and trial was first set for February 9, 1981. On that date and subsequently on new trial dates of June 15, 1981 and January 18, 1982, the case was continued due to the illness and scheduling conflicts of defense counsel. On February 11,1982, a new trial date of May 10, 1982 was set.

At a pretrial conference for Lachney on May 19, 1981, Judge Lee indicated that he did not want to hear any pretrial motions or a bench trial on the Connella case due to his friendship with the Connella family. As a result of this statement, the assistant district attorney, Greg Fowler, noted in his records that Judge Lee did not want to hear the Connella case.

Both parties were present and ready for a jury trial on May 10, 1982, before Judge Jackson who was scheduled to hear criminal cases. At this time, however, Judge Jackson recused himself because he knew the victim and had prior knowledge of the crime. According to regular procedures, the case then would be transferred to Judge Lee who was sitting as the other judge assigned to hear criminal cases during that time.

Apparently believing that Judge Lee would decline to hear the case, Mr. Fowler dismissed his witnesses after Judge Jackson’s recusal. On that same day, witnesses overheard the district attorney, Edwin 0. Ware, remark that the state could not get a fair trial before Judge Lee if the accused was white. Mr. Fowler testified that he did not overhear this remark. Other witnesses testified that he was present when the remark was made.

The next day, May 11, the matter came up before Judge Lee. Mr. Fowler explained that because of Judge Lee’s expression of preference at Lachney’s pretrial conference in 1981, he had not contemplated calling the case before him. At this point Judge Lee explained that his reservations concerning acting with reference to this prosecution were limited to deciding pretrial matters or presiding over a bench trial and that he had no hesitation about presiding over a jury trial. Having had the matter explained, Mr. Fowler moved for a continuance because his witnesses, some of whom were from out of state, had been released the day before. Alternatively, he sought to recuse Judge Lee.

Judge Lee denied the continuance and assigned the motion to recuse to Judge Mansour for hearing. Accepting Judge Lee’s testimony that he could fairly preside over a jury trial, Judge Mansour denied the motion to recuse. At the parties’ request, Judge Mansour also ruled on the motion for continuance, denying it as Judge Lee did.

The court recessed with the Connella case scheduled to come to trial after lunch. However, Mr. Fowler filed a motion to dismiss the prosecution pursuant to LSA-C. Cr.P. art. 691 before the case was called. Although defense counsel objected strenuously, Judge Lee had no alternative but to accept the dismissal.

On June 29, 1982, a new bill of information was filed charging Connella with receiving stolen things. This charge admittedly arose out of the same facts as the prior burglary charge. Connella filed a motion to quash the new bill claiming that due to prosecutorial misconduct his right to a speedy trial had been denied. The alleged prosecutorial misconduct complained of is that the state’s action in dismissing and rebilling Connella amounts to judge-shopping.

The matter came before Judge Teekell who denied the motion to quash finding that “Mr. Greg Fowler has acted in good faith, and has acted diligently in representing the State’s interests regarding the prosecution in this particular case.” We agree with this finding. Mr. Fowler dismissed his witnesses after Judge Jackson’s recusal, acting under a mistaken belief that Judge Lee would not hear the case in any posture and knowing that these were the only two judges hearing criminal cases at that time. When faced with the prospect of going to trial the next day without his witnesses, Mr. Fowler did the only thing he knew to do at that point to protect the state’s interests. There is no evidence that Mr. Fowler’s decision was influenced by Mr. Ware’s gratuitous remarks concerning Judge Lee.

The actual delay in this case as a result of prosecutorial actions was from May 10,1982 until October 11, 1982, when Connella entered his guilty plea. This is not a substantial amount of time for a case which has been delayed for almost two years at defendant’s request.

In Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), the United States Supreme Court addressed the speedy trial issue and discussed four factors to be considered in determining whether a defendant has been deprived of his right to a speedy trial. These factors are the length of the delay, the reason for the delay, the defendant’s assertion of his right, and prejudice to the defendant.

As stated before, we do not find the length of the delay in this case to be significant. Although more than two years passed between the time Connella was arrested and the time he was ultimately brought to trial, only five months of that time is attributable to the prosecution. The reason for that five-month delay has been fully discussed above. Under the circumstances, the prosecution acted in good faith in delaying the trial and protecting the state’s interests.

There is no doubt that Connella timely asserted his right to a speedy trial. This was first done on May 11, 1982, just after the case was dismissed by the prosecution. Since we find that there was no violation of Connella’s right to a speedy trial, the assertion of the right becomes unimportant.

Defense counsel strongly urges on appeal that because the delay was attributable to prosecutorial misconduct, there is no requirement that prejudice to the defendant be shown. We hold that there was no pros-ecutorial misconduct, rather an unfortunate misunderstanding occurred. Connella has made no showing that he suffered prejudice as a result of the five-month delay caused by the prosecution and is not entitled to relief.

For the above reasons, the judgment of the trial court is affirmed. Costs of this appeal are assessed to defendant-appellant.

AFFIRMED.

      . Lachney also appealed his conviction. His claims are dealt with by another panel of this court in a separate opinion captioned State v. Lachney, 436 So.2d 645 (La.App. 3rd Cir. 1983).


author: GUIDRY, Judge. DOMENGEAUX, Judge,

text:
    STATE of Louisiana, Plaintiff-Appellee, v. Martin CARTER, Defendant-Appellant.
    No. CR82-771.
    Court of Appeal of Louisiana, Third Circuit.
    June 29, 1983.
    Writ Denied Oct. 17,1983.

      Leonard K. Knapp, Jr., Dist. Atty., Lake Charles, for plaintiff-appellee.
    Jack Rogers, Rogers, St. Romain & Crochet, Lake Charles, for defendant-appellant.
    Before DOMENGEAUX, GUIDRY and YELVERTON, JJ.
   GUIDRY, Judge.

The defendant, Martin Carter, pleaded guilty to one count of armed robbery, a violation of LSA-R.S. 14:64. The trial court sentenced the defendant to fifty years at hard labor, without benefit of parole, probation or suspension of sentence. The defendant appeals, asserting that (1) the sentence imposed is excessive, violating Art. 1, § 20 of the Louisiana Constitution; and, (2) the trial court erred by failing to adequately state the reasons for the imposition of the sentence as required by LSA-C.Cr.P. Art. 894.1.

The record shows that on May 15, 1982, the defendant and a companion drove to a convenience store in Lake Charles, Louisiana. While his companion pumped gas into the car, the defendant robbed the store attendant at gunpoint. The two men fled, and were later apprehended by sheriff’s deputies.

The defendant contends that a fifty year sentence for this offense constitutes excessive punishment in violation of Art. 1, § 20 of the Louisiana Constitution.

The penal provision of LSA-R.S. 14:64 states:

“B. Whoever commits the crime of armed robbery shall be imprisoned 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.”

The trial judge is vested with wide discretion in imposing sentences within statutory limits, and the sentence imposed should not be set aside absent a manifest abuse of discretion. State v. Landos, 419 So.2d 475 (La.1982); State v. Fergus, 418 So.2d 594 (La.1982). However, a sentence which falls within the statutory limits may be excessive when considered in light of the particular defendant and the circumstances of the particular crime. State v. Forshee, 395 So.2d 742 (La.1981); State v. Sepulvado, 367 So.2d 762 (La.1979).

In the instant case, we find no abuse of the trial court’s discretion in the imposition of a fifty year sentence. The seriousness of the offense committed cannot be ignored. An armed robbery created an atmosphere “fraught with danger” to the victim and to others present, as well as to the accused himself. State v. Douglas, 389 So.2d 1263 (La.1980); State v. Levi, 259 La. 591, 250 So.2d 751 (La.1971). We also observe that the sentence imposed by the judge is far short of the maximum sentence allowable for the offense, ninety-nine years.

The defendant, twenty-two years of age at the time of sentencing, has twice before been convicted of felonies. These convictions grew out of thefts committed in Texas. Following the first conviction, the defendant was placed on probation. Within six months the defendant was convicted of burglarizing a building with the intent to commit theft and theft of a truck. The defendant was sentenced to three years confinement following this conviction.

The record thus demonstrates that probation and shorter periods of confinement have failed to deter the defendant from continuing to engage in criminal conduct. The trial court obviously recognized the danger that the defendant poses if not confined for an extensive period of time. Furthermore, the record shows no factors which would mitigate the serious nature of the defendant’s offense. We also observe that, owing to his prior felony convictions, the defendant could have been charged as a multiple offender, which would have greatly increased his sentencing exposure. See State v. Thompson, 429 So.2d 862 (La.1983). We find no abuse of discretion in the imposition of a fifty year sentence.

The defendant also asserts that the trial court erred in failing to comply with LSA-C.Cr.P. Art. 894.1. This article lists aggravating and mitigating factors to be considered by the trial judge in imposing sentence, and requires that the trial judge “state for the record the considerations taken into account and the factual basis therefor in imposing sentence.”

We observe that the reasons given by the trial judge in imposing sentence do not comply with the guidelines provided in LSA-C.Cr.P. Art. 894.1. However, noncompliance with the statute does not necessarily require that the sentence be set aside when the record clearly justifies the sentence imposed. Where the record shows a factual basis for the sentence imposed and demonstrates that the sentence is not arbitrary or excessive, a remand for resentencing is not necessary. State v. Jett, 419 So.2d 844 (La. 1982).

Although the trial judge’s reasons standing alone do not fulfill the requirements of LSA-C.Cr.P. Art. 894.1, the record clearly supports the sentencing choice. The defendant has shown a great propensity for criminal behavior and an unwillingness to respect the rules of a civilized society. The record also demonstrates the failure of probation and shorter terms of confinement to effect any reform in the defendant’s behavior. Furthermore, the defendant failed to present any factors which would support the imposition of a lesser sentence. Under these circumstances, we find it unnecessary to remand this case simply for compliance with LSA-C.Cr.P. Art. 894.1.

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

AFFIRMED.

DOMENGEAUX, J., concurs and assigns reasons.

DOMENGEAUX, Judge,

concurring.

I am in complete agreement with the affirmation of the defendant’s conviction and sentence. However, I once again reiterate the position that I stated previously in my concurring opinions in State v. Goodman, 427 So.2d 529 (La.App. 3rd Cir.1983), and State v. Vallare, 430 So.2d 1336 (La.App. 3rd Cir.1983), that our new constitution does not provide for nor mandate judicial review of sentences which fall within the limits set by the respective criminal statutes.

      . The record does not make clear how much of this sentence was actually served.


author: SAVOIE, Judge. CRAIN, Judge, PONDER, Judge,

text:
    In re Appeal of Merlin BRISSET (DHHR, Office of Charity Hospital of Louisiana at New Orleans).
    No. 82 CA 0013.
    Court of Appeal of Louisiana, First Circuit.
    June 30, 1983.
    Writ Denied Nov. 11,1983.

      Stephen J. Caire and Eavelyn T. Brooks, Asst. Attys. Gen., Dept, of Justice, New Orleans, for William J. Guste, Jr.
    H.M. Westholz, Jr. and Philip H. Kennedy, Staff Attys., Dept, of Health & Human Resources, New Orleans, for D.H.H.R.
    Archie C. Tatford, Jr., Atty. at Law, New Orleans, for Merlin Brisset.
    Robert R. Boland, Jr., Civil Service Gen. Counsel, Dept, of State Civil Service, Baton Rouge, for George Hamner.
    Before PONDER, SAVOIE and CRAIN, JJ.
   SAVOIE, Judge.

Pursuant to remand by the Supreme Court, this case is before us for a second time. The issues presented are: (1) whether just cause existed for the February 1, 1980 reprimand of Merlin Brisset, and (2) the constitutionality of L.S.A.-R.S. 42:1451.

At the time of this suit, Merlin Brisset was employed as an Executive Housekeeper by the Department of Health and Human Resources, Charity Hospital of Louisiana at New Orleans, and was serving with permanent status. By hospital telegram, dated February 1,1980, Brisset was given a letter of warning and charged with insubordination or failure to obey direct orders. Bris-set filed a notice of appeal denying all charges and requesting, among other things, that the letter of warning be removed from his personnel file. Thereafter, a hearing was held in which the commission concluded that just cause existed for the reprimand. In addition, the commission denied Brisset’s request for attorney’s fees under L.S.A.-R.S. 42:1451, declaring such statute unconstitutional.

The decision of the commission was appealed to this court, 424 So.2d 1040 (La.App. 1982), by the State of Louisiana, on its behalf and on behalf of Merlin Brisset. On appeal, we concluded that the attorney general was without authority to appeal Bris-set’s remand since no right or interest of the state was aggrieved thereby. Accordingly, we dismissed that portion of the appeal. In addition, we held that the commission had no power to determine the constitutionality of state statutes, and vacated its decision to that extent.

The Supreme Court, 430 So.2d 79 (1983), reversed and remanded to this court for a decision on Brisset’s appeal and the constitutionality of L.S.A.-R.S. 42:1451.

I. BRISSET’S APPEAL

As a result of its hearing, the commission concluded that just cause existed for the February 1, 1980 reprimand charging Bris-set with failing to obey directives concerning the scheduling of overtime work. This conclusion was based on the commission’s determination that on three occasions, Bris-set failed to submit overtime requests prior to the work being performed.

Article 10, Section 8(A) of the Louisiana Constitution of 1974 provides that no person who has gained permanent status in the classified state civil service shall be subject to disciplinary action except for cause expressed in writing. Further, it provides that on appeal the burden of proof is on the authority to fully support that the dismissal was for “cause.” Ryder v. Department of Health and Human Resources, 400 So.2d 1123 (La.App. 1st Cir.1981). Legal cause for disciplinary action exists when the conduct complained of impairs the efficiency of the public service and bears a real and substantial relation to the efficient and orderly operation of the public service in which the employee is engaged. Dent v. Department of Corrections, Louisiana Correctional Institution for Women, 413 So.2d 920 (La.App. 1st Cir.1982); Newman v. Department of Fire, 413 So.2d 225 (La.App. 4th Cir.1982).

To determine whether legal cause existed for the reprimand, a review of the commission’s findings of fact with respect thereto is appropriate. These findings of facts are entitled to great weight and will not be disturbed on appeal absent a showing of manifest error. Williams v. Department of Public Safety, Office of State Police, 415 So.2d 543 (La.App. 1st Cir.1982).

The commission presented the following factual conclusions:

“(1) The evidence established that the administration of Charity Hospital of Louisiana at New Orleans was attempting to implement a policy which would require that overtime requests be submitted in advance of the date on which the overtime was to be worked.

“(2) Much confusion existed concerning how far in advance requests for overtime were to be submitted to each person in the chain of command.

“(3) By memorandum dated March 1, 1979, all department heads and coordinators [sic] were advised that overtime work would henceforth fall into two categories: emergency and scheduled. Emergency overtime was defined as that which is necessary for the operation of the hospital and which could not be scheduled in advance or postponed to a later date. Scheduled overtime was defined as that approved in advance for necessary tasks by Pat Morgan, Assistant Administrator, General Services. The memorandum stated ‘No scheduled overtime will be authorized unless approved before the time and date involved.’ The memorandum does not indicate how far in advance the overtime requests were to be submitted.

“(4) By memorandum dated July 17, 1979, to appellant from Ronald Cline, appellant was advised that Mr. Cline was ‘requiring that a system be developed immediately which will allow for scheduling and approval of overtime for special requests at least one week in advance (and two weeks when possible) of when the work is to be performed.’ This memorandum does not indicate who is to be responsible for developing the system, nor when it is to become effective.

“(5) Appellant was aware of these memo-randa. Appellant contends that although he strove to submit such requests in advance, it was at times impossible for him to do so. Appellant asserts that the housekeeping department, being a service department, was bound to honor requests from other departments requiring such services as special cleaning. Appellant reported his difficulty in scheduling to his supervisor, Mr. Ronald Cline. Mr. Cline informed appellant that requests from other departments should be referred to Mr. Cline for handling.

“(6) Documentary evidence established that eight times between December 2, 1979 and January 29, 1980, appellant failed to request approval for overtime a week in advance. All but one of these requests were shown to have been approved by appellant’s superiors, despite the fact that none were timely if judged by the seven day rule. On each form requesting overtime, the word ‘scheduled’ was checked as indicating the type of overtime requested. Of these eight requests, only three were for work already performed or to be done that same day. The remaining five were submitted from two to five days ahead of the date the work was to be done.

“(7) Documentary evidence introduced by counsel for the appellant showed fifteen instances in July and December of 1979 and in January, 1980, when overtime requests submitted by employees other than appellant were similarly untimely. All but two of these requests indicated that they were for ‘scheduled’ overtime. Testimony established that no disciplinary actions were taken against the persons submitting these reports.”

We find no error on the part of the commission with respect to these findings of facts. However, we conclude these facts fail to establish a legal cause for disciplinary action.

Particularly to be noted is the fact that Brisset’s supervisors approved his requests without comment. This tends to indicate that his superiors approved the procedure by which he submitted the overtime requests. Further, the progression of incidents clearly indicates that Brisset was attempting to give as much advance notice as possible under the circumstances. The fact that Brisset failed to submit overtime requests prior to the work being performed on only three occasions fails to constitute an impairment of the efficiency of the public service. Therefore, the reprimand of February 1,1980 is to be stricken from Brisset’s personnel file.

II. THE CONSTITUTIONALITY OF L.S.A.-R.S. 42:1451-

In its opinion on the appeal of Merlin Brisset, the commission rejected Brisset’s request for attorney fees under L.S.A.-R.S. 42:1451. It opined that the statute was unconstitutional, as it attempted to usurp powers granted exclusively to the Civil Service Commission by the Louisiana Constitution.

At the outset, this court reaffirms its previous holding in this case with respect to the commission’s lack of power to rule on the constitutionality of a state statute. See also La. Constitution 1974, Art. V, Sec. 1; and State, through the Department of Highways v. Constant, 359 So.2d 666 (La. App. 1st Cir.1978), as amended and affirmed as amended, 369 So.2d 699 (La.1979).

A general principle of judicial interpretation of a state constitution is that a state charter’s provisions are limitations on the power of the people exercised through the state legislature. Therefore, the legislature may enact any legislation that the state constitution does not prohibit. Accordingly, to hold legislation invalid under the state constitution, it is necessary to rely upon some particular constitutional provision that limits the power of the legislature to enact the statute assailed. State Ex Rel. Guste v. Legislative Budget Committee, 347 So.2d 160 (La.1977).

Article X, Section 10(A) of the Louisiana Constitution vests the Civil Service Commission with broad and general rule-making and subpoena power for the administration and regulation of the classified service. Included therein is the power: (1) to adopt rules for regulating employment, promotion, demotion, suspension, reduction in pay, removal, certification, qualifications, political activities, employment conditions, compensation and disbursements to employees, and other personnel matters and transactions; (2) to adopt a uniform pay and classification plan; (3) to require an appointing authority to institute an employee training and safety program; and (4) generally, to accomplish the objectives and purposes of the merit system of civil service as herein established.

“In any appeal under Article X Section 8 of the constitution by an employee in the classified state civil service to overturn any action by the department or agency employing him in which the decision to take the action is overruled and such decision is found to be unreasonable, the Civil Service Commission shall order the department or agency to pay reasonable attorneys’ fees incurred by the employee in appealing the action.”
“... Nothing herein shall prevent the legislature from enacting laws supplementing these uniform pay plans for sworn, commissioned law enforcement officers of the Division of State Police, Department of Public Safety and regularly commissioned officers of the Enforcement Division of the Department of Wildlife and Fisheries.”

Recently, this court traced the historical background of this Section. Thoreson v. Department of State Civil Service, 433 So.2d 184 (La.App. 1st Cir.1983). In that case, we focused on the power of the Civil Service Commission, particularly with respect to the adoption of a uniform pay and classification plan.

In Thoreson, supra, we concluded that the commission has the exclusive power to establish a uniform pay and classification plan for all certified employees. A fortiori, we now hold that the power vested in the commission under Art. X, Sec. 10(A) of the constitution is exclusive in nature with respect to all aspects to the classified service listed therein. This includes appeals from disciplinary action to the commission. As such, L.S.A.-R.S. 42:1451 infringes on the exclusive power granted to the commission by the Louisiana Constitution, Art. X, Sec. 10(A). Therefore, we hold this statute unconstitutional.

For the foregoing reasons, we hold the February 1, 1980 reprimand of Merlin Bris-set to be without legal cause and order the letter of warning therein stricken from Brisset’s employment record. Further, we hold L.S.A.-R.S. 42:1451 unconstitutional. There being no costs involved in this appeal, none are assessed.

REVERSED IN PART.

L.S.A.-R.S. 42:1451 is declared unconstitutional.

PONDER, J., concurs and assigns reasons.

CRAIN, Judge,

concurring.

The Civil Service Commission is given the power to review disciplinary action against classified employees who have gained permanent status. La. Const. Art. 10, Sec. 8(A). The scope of its review is to determine whether the disciplinary action was for cause. La.R.S. 42:1451 sets an additional standard of review. It requires that attorney fees be granted to employees who succeed in overruling a disciplinary action that, in addition to not being for cause, is also unreasonable. Consequently, the commission is required to make a finding other than that specified by the Constitution. For this reason alone, La.R.S. 42:1451 is unconstitutional. It is not necessary for us to decide whether the Legislature could constitutionally provide for attorney fees under other circumstances.

I respectfully concur.

PONDER, Judge,

concurring.

I concur in the result. I do express some doubt as to the propriety of the holding that the Civil Service Commission cannot declare an act on the subject of their procedure unconstitutional, especially without expressing the thought that they can refuse to follow an act they think to be unconstitutional. The remand was with the order that we pass on the merits of plaintiffs claim and on the constitutionality of the statute.

      . “Granted. Assuming (without deciding) that the Attorney General was without authority to represent Brisset on appeal, the appropriate sanction is not to dismiss Brisset’s appeal. The judgment of the court of appeal here questioned is reversed and remanded and the court of appeal is ordered to decide the appeal of Brisset with an opinion.”

      . “Granted. The court of appeal reinstated R.S. 42:1451 without deciding its constitutionality. The judgment here questioned is reversed and the case is remanded to the court of appeal to decide the constitutionality of R.S. 42:1451 in an opinion.”

      . L.S.A.-R.S. 42:1451 provides:

      . Article X, Section 10 of the Louisiana Constitution of 1974 further provides:

      . We note this exclusive power does not include commissioned law enforcement officers of the Division of State Police, Department of Public Safety or commissioned officers of the Enforcement Division of the Department of Wildlife and Fisheries. These two divisions were specifically exempted from the Commission’s exclusive power in Art. X, Sec. 10 of the constitution. See footnote 2. Further, we note that under Civil Service Rules 6.2(b) the pay plan only becomes effective when approved by the Governor in its entirety.

      . Appeals from disciplinary action to the Commission are regulated by rules established by the Commission. La. Const, of 1974, Art. X, Sec. 10(A); Chapter 13, Civil Service Rules; Shelton v. Southeastern Louisiana University, 431 So.2d 437 (La.App. 1st Cir.1983) concurring opinion.


author: ALFORD, Judge.

text:
    Alex A. ST. AMANT v. Al TALLEY, et ux.
    No. 83 CM 0536.
    Court of Appeal of Louisiana, First Circuit.
    July 5, 1983.
    Rehearing Denied Aug. 23, 1983.

      Jerry Lindig, Baton Rouge, for plaintiff-appellee.
    Robert T. Talley, Baton Rouge, for defendants-appellants.
    Before COVINGTON, LANIER and ALFORD, JJ.
   ALFORD, Judge.

This show cause was issued pursuant to a motion by appellee, Alex A. St. Amant, to dismiss this unlodged suspensive appeal on the basis that the appeal bond was not filed timely. This appeal is from a city court judgment. Pertinent dates herein are as follows:

1) May 27,1982 Trial.
2) April 18,1988 Judgment signed. Notice of judgment mailed.
3) April 27,1983 Motion for appeal filed.
4) April 29,1983 Appeal bond filed.
5) May 2,1983 Order of appeal signed.

Appeals from judgments of city courts are governed by LSA C.C.P. art. 5003, which provides:

“A. An appeal from a judgment rendered by a justice of the peace court, a city court or a parish court may be taken only within ten days from the date of the judgment or from the service of notice of judgment, when such notice is necessary. B. Where an application for new trial is timely filed, however, the delay for appeal commences on the day after the motion is denied, or from service of notice of the order denying a new trial, when such notice is necessary.”

The appeal bond, as well as the motion for appeal, must be filed within the ten (10) day period in order to perfect a suspensive appeal. Gissel v. Sehdeva, 413 So.2d 1370 (La.App. 1st Cir.1982).

In this ease, notice of judgment was required in that the matter was taken under advisement. LSA C.C.P. art. 4917. Since no application for a new trial was filed, the delay for appealing the judgment began to run from service of notice of judgment. LSA C.C.P. art. 5003. As noted in Haywood v. Salter, 421 So.2d 1190 at 1193 (La.App. 2nd Cir.1982),

“Although the term ‘service’ of notice of judgment is used in Article 5003, when that article is read in conjunction with Articles 4917 and 4919 it is obvious that the ten-day appeal delay commences the day after ‘mailing’ of notice of judgment where mailing is authorized by Article 4917.”

LSA C.C.P. art. 4917 authorizes the mailing of notice of judgment where the party entitled to such notice has, as in this case, counsel of record. Therefore, appellant’s appeal delays began to run on April 19, 1983, and the filing of the suspensive appeal bond on April 29, 1983, was not within the ten day delay period provided in LSA C.C.P. art. 5003. For this reason, we .must dismiss appellant’s suspensive appeal.

Appeal bonds are not, however, required for devolutive appeals. LSA C.C.P. art. 2124. Since appellant’s motion for appeal was timely, the appeal will be maintained as devolutive. Southern Mosaic Tile, Inc. v. Alessi, 402 So.2d 225 (La.App. 1st Cir.1981).

Therefore, for the foregoing reasons, ap-pellee’s motion to dismiss the suspensive appeal is granted at appellant’s costs, but the matter is maintained as a devolutive appeal. Appellant is entitled to the return of the security furnished.

•MOTION TO DISMISS SUSPENSIVE APPEAL GRANTED.

DEVOLUTIVE APPEAL MAINTAINED.