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State v. Plaisance , 444 So. 2d 665 ( 1983 )


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  • 444 So. 2d 665 (1983)

    STATE of Louisiana
    v.
    Thomas M. PLAISANCE.

    No. 83 KA 0868.

    Court of Appeal of Louisiana, First Circuit.

    December 22, 1983.

    David Paddison and Peter Garcia, Asst. Dist. Attys., Covington, for appellee.

    S. Austin McElroy, Oliver F. Johnson, Covington, for appellee.

    Before PONDER, WATKINS and CARTER, JJ.

    PONDER, Judge.

    Defendant pled guilty to simple robbery, a violation of La.R.S. 14:65.[1] He was sentenced to serve a period of seven years at hard labor and to pay a fine of $3,000.00 or, in default of payment, to serve an additional one year imprisonment.

    Defendant appealed and assigns as error the imposition of an excessive sentence.

    We affirm, as amended.

    The trial court imposed the maximum sentence of imprisonment as well as the maximum fine. The court also imposed an additional sentence in the event of default in payment of the fine. Defendant argues that since he is indigent and will not be able to make payment, he will be imprisoned beyond the maximum limit allowed by statute. Defendant's assignment of error has merit.

    In the case of an indigent defendant, it is impermissible to impose a prison term in lieu of payment of a fine that would result in the defendant serving a longer term than the statutory maximum for the offense. Williams v. Illinois, 399 U.S. 235, 90 S. Ct. 2018, 26 L. Ed. 2d 586 (1970); State v. Williams, 288 So. 2d 319 (La.1974); State v. Young, 432 So. 2d 1012 (La.App. 1st Cir.1983); State v. Hernandez, 432 So. 2d 350 (La.App. 1st Cir.1983).

    *666 The appointment of counsel from the Office of the Public Defender to represent the defendant throughout these proceedings adequately establishes defendant's indigency. State v. Williams, supra; State v. Young, supra; State v. Hernandez, supra.

    We must therefore vacate the fine portion of defendant's sentence.

    For the foregoing reasons, that portion of defendant's sentence which required him to pay a $3,000.00 fine or serve an additional year in default thereof, is vacated. In all other respects, defendant's sentence and conviction are affirmed.

    AFFIRMED, AS AMENDED.

    NOTES

    [1] La.R.S. 14:65:

    Simple robbery is the theft of anything of value from the person of another or which is in the immediate control of another, by use of force or intimidation, but not armed with a dangerous weapon.

    Whoever commits the crime of simple robbery shall be fined not more than three thousand dollars, imprisoned with or without hard labor for not more than seven years, or both.