State v. Padgett

In re Padgett, Lyman; — Defendants); applying for writ of certiorari and/or review, supervisory; to the Court of Appeal, Third Circuit, No. CR89-0366; Parish of St. Landry, 27th Judicial District Court, Div. "B", No. 87-0797.

Prior report: La.App., 554 So.2d 266.

Granted. A five year at hard labor sentence is apparently severe for a 73-year-old defendant who has taken steps to make full restitution. Contrary to the findings of the trial court, mitigating factors present in this case include defendant’s age, personal history, and past efforts to rectify the harm caused. A trial court must consider not only factors militating for incarceration but also any mitigating against it. The trial judge abused his discretion by not giving adequate consideration to these factors. Defendant’s sentence is vacated and the case is remanded to the district court for resentencing. State v. Cann, 471 So.2d 701, 703 (La.1985); State v. Ray, 423 So.2d 1116, 1120 (La.1982); State v. Deville, 376 So.2d 1237 (La.1979); State v. Sepulvado, 367 So.2d 762 (La.1979).