State v. Wingate - 95-1874 ( La. App. 1 Cir 02/23/96), 668 So. 2d 1324

Rule:

The trial court may impose a fine, imprisonment, or both, for a first offense Class 3 violation. La. Rev. Stat. Ann. § 56:33. While forfeiture of the fish is authorized by § 56:39, the things seized are forfeited to the Department of Wildlife and Fisheries in accordance with § 56:58 and § 56:60. These provisions clearly establish that forfeiture of the fish seized in connection with the Wildlife and Fisheries violation is an administrative, rather than a judicial, function.

Facts:

Relator, Edwin Wingate, was charged by bill of information with one count of possession of undersized catfish, in violation of La. R.S. 56:326A(7)(b), and one count of failure to maintain records, in violation of La. R.S. 56:306.4A. Relator pled not guilty and, after a bench trial on July 11, 1995, was found guilty as charged. For the possession of undersized catfish conviction, he was sentenced to 60 days in the parish jail and was fined $ 400, or 30 days in the parish jail in default of payment of the fine. For the failure to maintain records conviction, he was fined $ 300, or 60 days in the parish jail in default of payment of the fine, with this sentence to be served consecutively to the illegal possession sentence. Relator filed a writ application seeking review of his misdemeanor convictions and sentences. Relator contended that the trial court erred in denying his motion to quash, which alleged La. R.S. 56:326A(7)(b) was unconstitutionally vague and overbroad and a denial of equal protection.

Issue:

1. Was La. R.S. 56:326A(7)(b) unconstitutionally vague and overbroad and a denial of equal protection? 
2. Did the trial court have jurisdiction to make forfeiture of the seized catfish part of relator's sentence? 

Answer:

1) No. 2) No.

Conclusion:

On appeal, the court held that § 56:326A(7)(b) was not unconstitutionally vague and did not deny relator equal protection of the laws. Relator was more than a mere truck driver--he was a licensed wholesale/retail dealer under § 56:306.B4 and was criminally responsible for transporting undersized catfish because § 56:326A contained no scienter requirement. Relator's 60-day sentence and $ 700 fine were not excessive; however, relator should have been credited with time served. The trial court lacked jurisdiction to make forfeiture of the seized catfish part of relator's sentence because that type of forfeiture was solely within the province of the Department of Wildlife and Fisheries in accordance with §§ 56:58 and 56:60.