State v. Berkeley5/30/2001
In his final assignment of error, defendant argues that the trial court erred by imposing an excessive and illegal sentence. Defendant did not orally object to the sentence below. He filed a written motion to reconsider sentence. However, it was untimely. When a defendant fails to file a timely motion to reconsider sentence, the appellate court's review is limited to the bare claim that the sentence is constitutionally excessive. State v. Sanders, 33,778 (La.App. 2 Cir.10/4/00), 769 So.2d 183, 188, citing State v. Mims, 619 So.2d 1059 (La.1993). Constitutional review turns upon whether the sentence is illegal, grossly disproportionate to the severity of the offense, or shocking to the sense of justice. Id.
The law regarding excessive sentences is set forth in State v. Hester, 99-426 (La.App. 5 Cir.9/28/99), 746 So.2d 95, writ denied, 99-3217 (La. 4/20/00), 760 So.2d 342:
The Eighth Amendment to the United States Constitution and Article 1, Section 20 of the Louisiana Constitution prohibit the imposition of excessive punishment. A sentence is considered excessive if it is grossly disproportionate to the offense or imposes needless and purposeless pain and suffering. Even a sentence which falls within statutory limits may be excessive under certain circumstances. Once imposed, a sentence will not be set aside absent a showing of manifest abuse of the trial court's wide discretion to sentence within statutory limits. Id. at 103 (citations omitted).
In reviewing a sentence for excessiveness, the appellate court must consider the punishment in light of the harm to society and gauge whether the penalty is so disproportionate as to shock its sense of justice. State v. Jackson, 597 So.2d 1188 (La.App. 5 Cir.1992). The trial judge is afforded wide discretion in determining a sentence, and the court of appeal will not set aside a sentence for excessiveness if the record supports the sentence imposed. State v. Daigle, 96-782 (La.App. 5 Cir.1/28/97), 688 So.2d 158, writ denied, 97-0597 (La.9/5/97), 700 So.2d 506. A sentence within statutory limits will not be set aside as excessive absent manifest abuse of discretion. State v. Slang, 94-332 (La.App. 5 Cir.11/16/94), 646 So.2d 1037, writ denied, 94-3063 (La.4/7/95), 652 So.2d 1344 (citation omitted).
Defendant was convicted of first degree vehicular negligent injuring, a violation of La. R.S. 14:39.2. The penalty provision of the statute is as follows:
D. Whoever commits the crime of first degree vehicular negligent injuring shall be fined not more than two thousand dollars or imprisoned with or without hard labor for not more than five years, or both.
The record reveals that prior to sentencing, the trial court considered defendant's age, family ties, letters from family and friends, the report from Family and Forensic Services, defendant's prior criminal record, the seriousness of the present offense, the injuries the victim suffered, defendant's drinking problem, and the sentences for similar crimes. The statute indicates that defendant could have been fined not more than $2,000.00 or imprisoned with or without hard labor for not more than five years, or both. In this case, defendant was fined $1,000.00 and sentenced to five years at hard labor, which was suspended with special conditions. Upon review, we do not find the sentence to be grossly disproportionate to the severity of the offense, nor does it impose the needless and purposeless imposition of pain and suffering. Further, the trial court's sentence is supported by the record. We find no abuse of discretion by the trial court in the length of defendant's sentence.
In addition to being excessive, defendant also argues that his
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