State v. Johnson
| Decision Date | 08 March 1973 |
| Docket Number | No. 52537,52537 |
| Citation | 278 So.2d 84 |
| Parties | STATE of Louisiana v. Charles M. JOHNSON and New Orleans Book Mart, Inc. et al. |
| Court | Louisiana Supreme Court |
Michael Silvers, New Orleans, for defendants-appellants.
William J. Guste, Jr., Atty. Gen., Harry H. Howard, Asst. Atty. Gen., Jim Garrison, Dist. Atty., Louise Korns, Asst. Dist. Atty., for plaintiff-appellee.
Charles M. Johnson and the New Orleans Book Mart, Inc. were jointly charged by bill of information 1 for five violations of the obscenity statute, La.R.S. 14:106 After a trial before a judge, they were found guilty of all five counts and sentenced as follows: 2
In our examination of the pleadings and proceedings below, following the submission of the case to us for decision, we have found, Ex proprio motu, the trial court imposed an illegal sentence requiring remand.
Inasmuch as the defendant, by his failure to assert a timely Motion to Quash (La.C.Cr.P. art. 535) waived an objection that the Bill of Information was fatal by virtue of misjoinder of the five counts (La.C.Cr.P. art. 532(3)), we must conclude the bill to be legal charging one offense of the statute. La.C.Cr.P. arts. 493 and 495. Cf. State v. Giangrosso, 263 La. 275, 268 So.2d 224 (1972).
The penalty provision for a violation of La.R.S. 14:106 reads:
'Whoever commits the crime of obscenity shall be fined not less than one hundred dollars nor more than five hundred dollars, or imprisoned for not more than six months, or both . . .'
By imposing a total fine of $1500 upon defendant and imprisonment which, in default of payment totaled approximately ten (10) months, the trial judge exceeded the penalty allowed. 3
For the reasons assigned, it is ordered the sentence be set aside and the case remanded to the Criminal District Court for the Parish of Orleans, Section 'C' for resentencing in conformity with the law.
BARHAM, J., concurs considering the judgment not final since sentence is declared illegal.
The State's application for rehearing is based upon the assumption that five offenses were charged and that, by failing to...
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State v. Johnson
...La.Const. Art. 7, § 10. In March of 1973 we remanded the case to the district court for re-sentencing on one count only. State v. Johnson, 278 So.2d 84 (La.1973).2 On remand to the Criminal District Court for the Parish of Orleans, relator, Johnson, was sentenced to pay a fine of $300 or to......
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State v. Hungerford
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