State v. Restrepo
| Citation | 527 So.2d 473 |
| Decision Date | 07 June 1988 |
| Docket Number | No. 88-KA-58,88-KA-58 |
| Parties | STATE of Louisiana v. Pedro RESTREPO. 527 So.2d 473 |
| Court | Court of Appeal of Louisiana (US) |
John M. Mamoulides, Dist. Atty., Gaynell Williams, Asst. Dist. Atty., Gretna, for plaintiff-appellee.
Frederick J. King, Jr., New Orleans, for defendant-appellant.
Before KLIEBERT, GRISBAUM and GOTHARD, JJ.
The defendant, Pedro Restrepo, and his wife, Gloria Padilla, were charged by bill of information with possession of over 200 and less than 400 grams of cocaine, in violation of LSA-R.S. 40:967. Pursuant to a plea bargain agreement defendant entered a plea of guilty to the reduced charge of attempted possession, and all charges against Padilla were dismissed. After reviewing a pre-sentence investigation report the trial judge imposed a sentence of fifteen years at hard labor and a fine of $75,000.00 plus $215.00 in costs and fees, to be paid within one year of the defendant's release from prison. Defendant appeals the sentence imposed as excessive. For the reasons which follow we vacate the sentence and remand the case for resentencing.
Jefferson Parish Sheriff's deputies executed a search warrant at the residence of Pedro Restrepo and Gloria Padilla. Approximately one pound of cocaine, a triple-beam scale, and $14,159.00 in currency were seized. The currency was forfeited to the state pursuant to the provisions of LSA-R.S. 32:1550, et seq.
The trial judge had the benefit of a pre-sentence investigation report. The report reflects that the defendant is 34 years old, was born in Columbia, S.A., and has resided in the United States for fourteen years. He is married, has no children, and is a self-employed mechanic. Defendant is a first felony offender with no previous arrests; however, approximately one month before sentencing defendant was arrested for possession of cocaine. The summary and recommendation of the probation officer is that the defendant meets the eligibility requirements for the Intensive Incarceration/Parole Program (LSA-R.S. 15:574.4 et seq.) and is recommended for same should his sentence be for imprisonment for seven years or less.
The sentence imposed was the maximum term (15 years) of imprisonment under the statute for attempted possession, which is one-half of the maximum (30 years) for possession. Further, defendant's fine was $75,000.00 of a possible $175,000.00. As a general rule maximum sentences are reserved for the most serious violations of the relevant statutes and the worst type of offender. State v. Jones, 398 So.2d 1049 (La.1981). However, where the offense to which the defendant pleaded guilty inadequately discribes his conduct, and a significant reduction in exposure to imprisonment has been obtained through plea bargaining, the trial court has great discretion in imposing the maximum sentence. State v. Lanclos, 419 So.2d 475 (La.1982). The defendant significantly reduced his exposure to imprisonment through the plea bargain. Moreover, as a first felony offender, defendant is eligible for parole after serving one-third of his sentence. LSA-R.S. 15:574.4. Eligibility for parole is an amelioratory factor which should be considered in gauging the heaviness of sentences. State v. Green, 418 So.2d 609 (La.1982). The defendant's subsequent arrest on a charge of possession of cocaine is likewise a relevant factor. State v. Jenkins, 419 So.2d 463 (La.1982).
Despite the existance of the above enumerated factors which support the sentence imposed, we vacate the sentence and remand the case for resentencing, for the transcript of the sentencing hearing reflects that the trial judge considered inappropriate sentencing factors, failed to consider applicable mitigating factors, and at the time of sentencing was unsure of the charge on which the defendant was to be sentenced and the applicable sentencing range.
The trial court first voiced the opinion that the defendant was a drug dealer and stated that the probation...
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