The issue before us concerns an allegedly excessive sentence imposed without stating the factual reasons therefor, as required by La.C.Cr.P. art. 894.1 (1977).
The defendant was charged by 13 bills of information with issuing 13 worthless checks, La.R.S. 14:71, on November 25, 26, and 29, 1976. The checks totalled $406.96; all but four of them were for amounts of $30.00 or less, and the largest of them was for $90.30.
On October 28, 1977, the defendant pleaded guilty. The trial court specifically informed him that, by doing so, he subjected himself to imprisonment "for a long time—up to six months on each charge." Accepting his plea of guilty, the trial court then sentenced the defendant to 13 consecutive maximum sentences on each charge, La.R.S. 14:71, totalling six and one-half years, in the parish prison.
The defendant's counsel specifically objected to the lengthy sentence as being excessive in violation of La.Const. of 1974, Article 1, Section 20. The trial court overruled the objection, stating: "After careful consideration of accused's record and presentence report—sentence was based thereon."
On the defendant's application, we granted certiorari, La., 354 So.2d 204 (1978), to review his contention that the consecutive sentences were excessive in light of the legislative guidelines provided by La.R.S. 14:71.
This enactment is set forth in full in an appendix to this opinion. It graduates maximum punishment for a worthless check according to its amount. Relevant to the present issue, the legislation also provides for enhanced punishment upon conviction of the offense after prior conviction for the same offense, and it indicates a legislative policy as to the appropriate penalty based
Specifically, the legislation provides for imprisonment, with or without hard labor, Cf: (a) not more than 10 years, when the amount of the check or checks is $500 or more; and (b) not more than 2 years, when the amount is between $100 and $500. The statute also provides for imprisonment without hard labor of not more than six months, when the amount is less than $100; in this event, however, the sentence imposed may be imprisonment, with or without hard labor, of not more than two years, if the offender "has been convicted of issuing worthless checks two or more times previously."
Additionally, the legislation provides: "When the offender has issued two or more worthless checks, the aggregate of the worthless checks shall determine the grade of the offense."
Here, so far as the record shows, the defendant (never before convicted of issuing a worthless check) was guilty of issuing 13 worthless checks over a period of four days, each less than $100, but totaling $406.96 in aggregate. He was sentenced to six and one-half years imprisonment.
Construing the statute as a whole, the apparent legislative policy with regard to imprisonment for the offense of issuing a series of worthless checks contemplated a sentence of not more than two years when the aggregate amount, as here, was less than $500. The legislature also contemplated enhancement of the punishment for issuing worthless checks of less than $100 if the offender "has been convicted of issuing worthless checks two or more times previously"—but the record before us does not indicate such basis for enhancement of the punishment.
In exercising his discretion to impose consecutive sentences beyond the norms as thus indicated by the legislature, the trial judge stated that he had done so on the basis of the accused's prior record and presentence report. The trial court did not, however, comply with La.C.Cr.P. art. 894.1 (1977), then applicable. This enactment sets forth certain pertinent sentencing guidelines, and it further provides: "The court shall state for the record the considerations taken into account and the factual basis therefor in imposing sentence."
As in State v. Sepulvado, 359 So.2d 137 (1978), where an apparently excessive sentence was imposed without a recitation by the sentencing judge of the considerations and factual basis upon which he relied, we vacate these sentences and we remand these cases to the trial court, with instructions that it re-sentence the defendant in compliance with La.C.Cr.P. art. 894.1 and in the light of the considerations above expressed.
Accordingly, the convictions are affirmed, but the sentences imposed are vacated and set aside, and the case is remanded to the trial court with instructions that the defendant be re-sentenced in accordance with La.C.Cr.P. art. 894.1.
CONVICTIONS AFFIRMED, BUT SENTENCES SET ASIDE, AND CASE REMANDED FOR RE-SENTENCING.
SANDERS, C. J., concurs.
On the date of the offenses, La.R.S. 14:71 (1976) provided as follows:
[The second paragraph was amended by Act 367 of 1977 to provide for presumptive evidence of fraud additionally if the offender fails to pay within ten days after delivery or personal tender of the notice of non-payment. The amendment is immaterial to the present discussion.]