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State v. Volgamore1/28/2004
le, or suspension of sentence. The remainder of the sentence of imprisonment shall be suspended and the offender shall be required to undergo an evaluation to determine the nature and extent of the offender's substance abuse disorder.
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(4)(b) If the offender has previously received the benefit of suspension of sentence, probation, or parole as a fourth offender, no part of the sentence may be imposed with benefit of suspension of sentence, probation, or parole, and no portion of the sentence shall be imposed concurrently with the remaining balance of any sentence to be served for a prior conviction for any offense.
Whether the sentence imposed is too severe depends on the circumstances of the case and the background of the defendant. A sentence violates La. Const. art. 1, §20 if it is grossly out of proportion to the seriousness of the offense or nothing more than a purposeless and needless infliction of pain and suffering. State v. Dorthey, 623 So.2d 1276 (La. 1993); State v. Bonanno, 384 So.2d 355 (La. 1980). A sentence is considered grossly disproportionate if, when the crime and punishment are viewed in light of the harm done to society, it shocks the sense of justice. State v. Hogan, 480 So. 2d 288 (La. 1985); State v. Bradford, 29,519 (La. App. 2d Cir. 4/2/97), 691 So.2d 864.
A trial court has broad discretion to sentence within the statutory limits. Absent a showing of manifest abuse of that discretion we will not set aside a sentence as excessive. State v. Guzman, 99-1528, 99-1753 (La. 5/16/00), 769 So.2d 1158.
On this record, we do not find constitutional error. The defendant has a history of DWI convictions and on January 28, 2002, the defendant pled guilty to DWI, fourth offense. He received leniency from the trial court for that conviction, when it imposed a sentence to be served with the benefit of probation. In the present case, the district court noted that the defendant committed the current offense while on probation for a prior DWI conviction in which the court imposed the same sentence.
The sentence is lawful and is the minimum term of imprisonment which could have been imposed. Under these circumstances, the imprisonment provisions of LSA-R.S. 14:98(E)(4)(b) were correctly applied, and the sentence is neither grossly disproportionate to the severity of the offense nor shocking to our sense of justice. There is no showing of a manifest abuse of the district court's discretion in the imposition of this sentence. The sentence is not constitutionally excessive.
Pursuant to LSA-C.Cr.P. art. 920, we have examined the record and note the presence of an error patent. LSA-R.S. 14:98(E)(1)(a) provides that upon conviction of a fourth offense, in addition to the prison sentence, the offender "shall be fined five thousand dollars." However, the trial court did not impose the mandatory fine, resulting in an illegally lenient sentence.
A reviewing court has the authority to amend an illegally lenient sentence on its own motion. State v. Decrevel, 03-0259 (La. 5/16/03), 847 So.2d 1197; State v. Clemons, 01-1032 (La. App. 5th Cir. 2/26/02), 811 So.2d 1047. Therefore, we amend the sentence to assess defendant with a mandatory fine of $5,000.
CONCLUSION
For the foregoing reasons, the defendant's conviction is affirmed. The sentence is hereby amended to impose the mandatory fine of $5,000 in addition to the term of imprisonment imposed, and the sentence is otherwise affirmed.
CONVICTION AFFIRMED; SENTENCE AMENDED AND AFFIRMED AS AMENDED.
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