State v. Garity , 1973 La. LEXIS 6185 ( 1973 )

PER CURIAM.

Defendant, Carol E. Garity, was tried by a judge and found guilty of theft of less than one hundred dollars ($100.00) (La.R. S. 14:67) and sentenced as follows: ¹

“ * * * The Court then sentenced the defendant to pay a fine of $500.00 or to serve six (6) months in the Parish Prison in default of the payment of the fine, plus to pay $28.00 court costs or to serve thirty (30) days in the Parish Prison in default of the payment of costs. * * * ”

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.

The penalty provision for a violation of La.R.S. 14:67 reads:

“When the misappropriation or taking amounts to less than a value of one hundred dollars, the offender shall be fined not more than five hundred dollars, or imprisoned for not more than six months, or both. * * * ”

By imposing a total fine of $528.00 upon defendant and imprisonment, which, in default of payment totaled approximately six months and thirty days, the trial judge exceeded the penalty allowed.²

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 re-sentencing in conformity with the law.

1 . As recorded in the minutes.

2 . See also La.C.Cr.P. Art. 884 which states in its pertinent part: “ * * * where the maximum prison sentence which may be imposed as a penalty for a misdemeanor is six months or less, the total period of imprisonment upon conviction of the offense, including imprisonment for default in payment of a fine or costs, shall not exceed six months for that offense.”