FOR IMMEDIATE NEWS RELEASE NEWS RELEASE #032
FROM: CLERK OF SUPREME COURT OF LOUISIANA
The Opinions handed down on the 9th day of September, 2020 are as follows:
PER CURIAM:
2019-KO-00998 STATE OF LOUISIANA VS. KEDDRICK KENNON (Parish of Webster)
We reverse the court of appeal's decision in State v. Kennon, 52,661 (La.
App. 2 Cir. 5/22/ 19), 2 73 So.3d 611, whic h fo und defendant' s 60-year
sentence a s a second-felony offender was not excessive . Findi ng that
sentence excessive, we vacate it. To restore the parties to the status quo ante,
we a lso vacate the habi tual offender adjudicati on, a nd we reinsta te the
original unenhanced sentences that were affirme d as amended in State v.
Kennon, 50,511 (La. App. 2 Cir. 4/13/16), 194 So.3d 661, writ denied, 16-
0947 (La. 5/19/17), 220 So.3d 747 - i.e., a term of 30 years imprisonment at
hard labor for distributi on, with the fir st two yea rs to be serve d without
parole eligibility, and a term of five years imprisonment at hard labor for
possession, the two terms to be served consecutively. Finally, we remand to
the district court for further proceedings consistent with the views expressed
above.
REVERSED AND REMANDED.
Retired Judge James Boddie, Jr., appointed Justice pro tempore, sitting for
the vacancy in Louisiana Supreme Court District 4.
Johnson, C.J., concurs in part and dissents in part and assigns reasons.
Crichton, J., additionally concurs and assigns reasons.
Crain, J., dissents and assigns reasons.

* Retired Judge James Boddie, Jr., appointed Justice pro tempore, sitting for the vacancy in
Louisiana Supreme Court District 4.
09/09/20
SUPREME COURT OF LOUISIANA
No
. 2019-KO-00998
STA
TE OF LOUISIANA
ve
rsus
K
EDDRICK KENNON
O
N WRIT OF CERTIORARI TO THE COURT OF APPEAL,
SECOND CIRCUIT, PARISH OF WEBSTER
PE
R CURIAM:*
The facts underlying these convictions are straightforward. In 2014, a police
informant made two controlled drug purchases from defendant in Minden. The
transactions were captured on hidden camera. On January 24, the informant
purchased two small bags of cocaine fr om defendant with $350 provided by the
police. The tra nsaction occurred in front of the home of defendant’ s mother. On
February 6, the inform ant purchased a small bag of cocaine and a small bag of
what was described as methamphetamine from defendant, this time in defendant’ s
home, with $350 provided by the po lice. The bag that was supposed to contain
methamphetamine turned out to contain bunk.
A Webster Parish jury found defendant guilty of distribution of cocaine and
possession of cocaine. In comparison to the facts, the procedural history after the
verdicts is labyrinthine. The district court sentenced defendant to serve two terms
of imprisonment at hard labor : 30 years and five years , to run consecutively . The
court of appeal affirmed the convictions and sentences (as amended to reflect that
the first two y ears of the 30 -year sentence for distribution of cocaine are to be

2

served without parole eligibility). State v. Kennon, 50,511 (La. App. 2 Cir.
4/13/16), 194 So.3d 661 (Kennon-1), writ denied, 16 -0947 (La. 5/19/17), 220
So.3d 747.1
On June 3, 2016, the State filed a habitual offender bill of information,
alleging that defendant is a fourth -felony offender with predicate felony
convictions for distribution of cocaine, possession of cocaine, and attempted
possession of cocaine with intent to distribute. Defendant admitted he i s a second-
felony offender (based on the attempted possession of cocaine with intent to
distribute predicate) and received an agreed -upon sentence of 60 years
imprisonment at hard labor. The district court, however, had vacated both
sentences before it imposed the 60-year sentence.
Defendant filed a motion to correct an illegal sentence, which the district
court denied. Because defendant received a single 60-year sentence despite being
convicted of two crimes, the court of appeal granted defendant’s application for
supervisory writs. The court of appeal vacated the habitual offender sentence and
remanded for resentencing. State v. Kennon , 52,343 (La. App. 2 Cir. 7/20 /18)
(unpub’d). On remand, the trial court reimposed the originally agreed-upon
sentence of 60 years imprisonment at hard labor as a second- felony offender for
distribution of cocaine. The district court also sentenced defendant to a concurrent
term of five years imprisonment at hard labor for the possession of cocaine
conviction.
The court of appeal affirmed the sentences. State v. Kennon, 52,661 (La.

1 On November 17, 2017, in keeping with La.S.Ct. Rule IX § 6 ( “An application for rehearing
will not be considered when the court has merely granted or denied an application for a writ of
certiorari or a remedial or other supervisory writ , . . . ”), this court declined to consider
defendant’s application for rehearing. Ordinarily, this would not merit mentioning. Here,
however, it is pertinent to defendant ’s argument regarding the finality of his conviction, as
discussed below.

3

App. 2 Cir. 5/22/19), 273 So.3d 611 (Kennon-2). The court of appeal found that it
could review the sentence, although it was imposed pursuant to a plea agreement,
because the dis trict court informed defendant at his original habitual offender
sentencing and at the resentencing that followed remand that he had 30 days to
appeal the sentence.
The court of appeal then found defendant was correctly sentenced under the
habitual offender statute, as it existed at the time defendant committed the
underlying criminal act, and that a subsequent legislative amendment that reduced
the sentencing range “is an improper metric to find a sentence excessive.” Kennon-
2, 52,661, p. 7, 273 So.3d at 617. The court of appeal noted that, although
defendant agreed to receive the maximum sentence authorized for a second- felony
offender, he could have received a mandatory life sentence if found to be a fourth-
felony offender, as the State had originally alleged. While recognizing that the
penalty range was reduced by a 2017 amendment to the Habitual Offender Law, 2
the court of appeal found the amendment applied prospectively only and did not
constitute a reason to find defendant’s sentence imposed under the pre-2017 law is
excessive.3 Finally, the court of appeal found defendant’ s sentence is not

2 The Habitual Offender Law, La.R.S. 15:529.1, was ame nded by 2017 La. Acts 282. With this
amendment, the legislature did the following : it reduced the minimum habitual offender
sentences for certain second, third, and fourth- felony offenders; it altered the criteria for
mandatory life sentences for third and fourth-felony offenders; it shortened the cleansing period
from 10 years to five years; and it expressly directed sentencing courts to consider whether
mandatory minimums would be constitutionally excessive under the criteria set forth in State v.
Dorthey, 623 So.2d 1276 (La. 1993).

If sentenced under La.R.S. 15:529.1 as amended by 2017 La. Acts 282, defendant would face a
sentencing range of 20 to 60 years as a fourth- felony offender, and 10 to 60 years as a second-
felony offender.

3 The court of appeal made this determination before this court held in State v. Lyles , 19-00203
(La. 10/22/19), 286 So.3d 407, that the full provisions of 2017 La. Acts 282 apply to persons
whose convictions became final on or after November 1, 2017, and whose habitual offender bil ls
were filed before that date. The parties here dispute whether defendant’s conviction became final

4

excessive. The court of appeal noted that defendant’ s criminal history reflects
defendant’s involvement in the drug trade, spans 20 years, and includes two parole
revocations, before the court concluded:
When viewed in the light of the harm done to society, the sentence the
defendant agreed to, while the maximum allowed for a second felony
offender, cannot be said to shock the sense of justice. The defendant
has obviously failed to benefit from prior leniency afforded him in
sentencing and has not been successfully rehabilitated despite the
many opportunities given to him. As noted by the trial court, the
defendant’s drug activity has continued to pose a dangerous thr eat to
the community. For these reasons, the agreed upon 60-year sentence
has been shown to be meaningfully tailored to the culpability of this
defendant and, accordingly, we affirm it.

Kennon-2, 52,661, p. 12, 273 So.3d at 619.
Defendant argues in this court that his 60-year habitual offender sentence is
reviewable despite it being imposed originally pursuant to a plea agreement, and
that it is excessive in violation of the prohibition against cruel, excessive, or
unusual punishment contained in La. Cons t. Art. 1, § 20. The State takes the
contrary views. For the reasons that follow, we find the 60-year sentence is both
reviewable and excessive, and therefore we set it aside. However, because the
sentence was negotiated as part of a plea agreement in whic h defendant admitted
his status as a second- felony offender, we also set aside the habitual offender
adjudication, we restore the parties to the status quo ante by reinstating the
unenhanced sentences (30 years and 5 years, to run consecutively) that were
affirmed as amended in Kennon -1, and we remand to the district court for further
proceedings.
As a general matter, sentences imposed in accordance with plea agreements
are unreviewable. La.C.Cr.P. art. 881.2(A)(2) (“ The defendant cannot appeal or

“on or after November 1, 2017” and thus whether defendant should be resentenced under the
amended law in accordance with the holding of Lyles. That question is answered below.

5

seek review of a sentence imposed in conformity with a plea agreement which was
set forth in the record at the time of the plea. ”); State v. Curry, 400 So.2d 614, 616
(La. 1981) ( “The sentence . . . was the result of plea bargaining culminating in a
plea of guilty with the sentence to be given understood and agreed to. Under these
circumstances we believe there was no necessity of listing enumerated reasons and
that the defendant cannot complain of excessive length. ”). Defendant argues this
general prohibition does not apply because he was not informed he was waiving
his right to appellate revi ew of the sentence, and he was informed of the time in
which to appeal.
The record shows that d uring the original plea colloquy held on August 1,
2016, the district court advised defendant that he was waiving the right to appeal,
but, after imposing sentence, the court also informed defendant he had 30 days to
appeal his sentence. On remand after the court of appeal set aside the sentence, the
district court once again informe d defendant that he had 30 day s to appeal the
sentence after resentencing him. Citing jurisprudence within its circuit, the court of
appeal found the district court’s statements sufficient to preserve defendant’s right
to appellate review of his sentence. Kennon-2, 52,661, p. 5, 273 So.3d at 616,
citing State v. Thomas, 51,364 (La. App. 2 Cir. 5/17/17), 223 So.3d 125, writ
denied, 17-1049 (La. 3/9/18), 238 So.3d 450; State v. Brown, 50,138 (La. App. 2
Cir. 9/30/15), 181 So.3d 170 ; State v. Fizer, 43,271 (La . App. 2 Cir. 6/4/08), 986
So.2d 243. Under that jurisprudence, “when the right to appeal has been mentioned
by the district court during the plea colloquy, even though there is an agreed
sentence or sentence cap, the defendant ’s sentence may be reviewed .” Thomas,
51,364, p. 9, 223 So.3d at 130.
While the district court’s advisements of the time to appeal were made after

6

the sentences were imposed and did not occur during either plea colloquy, there is
an even clearer indication here that the parties and the court intended for defendant
to be able to seek appellate review of the sentence. On remand, the district court
appointed a public defender to represent defendant and to advance arguments with
regard to the sentence on defendant’s behalf. Although the district court ultimately
rejected those arguments and resentenced defendant to the same 60-year term of
imprisonment, the court clearly stated that it wanted to preserve the record for
appellate review.
Defendant was resentenced after the Habitual Offende r Law, La.R.S.
15:529.1, was amended by 2017 La. Acts 282. Among the arguments advanced by
defendant before he was resentenced is a claim that he should be resentenced under
the amended law. The district court and the court of appeal rejected this claim but
did not have the benefit of this Court ’s decision in State v. Lyles , 19 -0203 (La.
10/22/19), 286 So.3d 407, which was decided after. Defendant now argues he is
entitled to be resentenced under Lyles because his conviction was not yet final until
after November 1, 2017, because appellate review of the habitual offender sentence
was ongoing. The State disagrees.
In State v. Lyles, this court considered whether the defendant’s habitual
offender status and sentence are governed by La.R.S. 15:529.1 as it existed at the
time of the commission of the crime in 2015, as it was amended by 2017 La. Acts
282, or as it was amended by 2018 La. Acts 542. Defendant in Lyles relied on
Section 2 of Act 282, which provides, “This Act shall become effective November
1, 2017, and shall have prospective application only to offenders whose
convictions became final on or after November 1, 2017. ” The State, however,
relied on a subsequent amendment to the Habitual Offender Law in 2018 La. Acts

7

542 to argue that the legislature subsequently clarified its intent that the version of
the Habitual Offender Law in effect at the time of the crime applied. This court
found that the language of Section 2 of Acts 282 is unequivocal, and therefore,
“For persons like defendant, whose convictions became final on or after November
1, 2017, and whose habitual offender bills were filed before that date, the full
provisions of Act 282 apply.” Lyles, 19-00203, p. 6, 286 So.3d at 411.
Here, the parties dispute whether defendant’s conviction is final for purposes
of Lyles and Section 2 of Act 282. First, defendant contends his conviction does
not become final until his habitual offender adjudication and sentence become
final. Second, defendant proposes in the alternative that, if his underlying
conviction is final, it became final when this court denied his application for
rehearing on November 17, 2017. This latter contention can be quickly dismissed
because it ignores the fact that this court did not deny the application for rehearing;
this court did not consider the application because it was prohibited from doing so
by La.S.Ct. Rule IX § 6 (“An application for rehearing will not be considered when
the court has merely granted or denied an application for a writ of certiorari or a
remedial or other supervisory writ, . . . ”). Therefore, defendant cannot avail
himself of La.C.Cr.P. art. 922(D) to stave off finality of the conviction.
4
To accept defendant ’s view that his conviction does not become final until
his habitual offender adjudication and senten ce become final, despite the fact that
appellate review of his conviction has been completed, would require the court to
read “offenders whose convictions became final on or after November 1, 2017 ” in
Section 2 of Act 282 as “offenders whose convictions and sentences became final”

4 Code of Criminal Procedure art. 922(D) provides (with emphasis added): “ If an application for
a writ of review is timely filed with the supreme court, the judgment of the appellate court from
which the writ of review is sought becomes final when the supreme court denies the writ.”

8

instead. Just as we were bound by this unequivocal language in Lyles to find that
defendant was entitled to be sentenced under La.R.S. 15:529.1 as amended by
2017 La. Acts 282, we are bound by it here to find this defendant is not.
The question presented is one of statutory interpretation, which begins “as
[it] must, with the language of the statute. ” Bailey v. United States , 516 U.S. 137,
143, 116 S.Ct. 501, 506, 133 L.Ed.2d 472 (1995). “Unequivocal provisions are not
subject to judicial construction and should be applied by giving words their
generally understood meaning.” State v. Oliphant, 12-1176, p. 5 (La. 3/19/13), 113
So.3d 165, 168; see also Connecticut Nat. Bank v. Germain , 503 U.S. 249, 253–
254, 112 S.Ct. 1146, 1149, 117 L.Ed.2d 391 (1992) ( “In any event, canons of
construction are no more than rules of thumb to help courts determine the meaning
of legislation, and in interpreting a statute a court should always turn first to one,
cardinal canon before all others. We hav e stated time and again that courts must
presume that a legislature says in a statute what it means and means in a statute
what it says there. When the words of a statute are unambiguous, then, this first
canon is also the last: ‘judicial inquiry is comple te.’”) (citations omitted). Just as
we did in Lyles , we find the language of Section 2 of Act 282 is unequivocal, and
therefore not subject to further judicial construction.
While the situation here is complicated by the bifurcated appeals that
resulted from the State’s decision to pursue recidivist sentence enhancement during
the pendency of the first appeal, we think it sufficient to find Lyles does not apply
here because a conviction is a conviction, while this c ourt has consistently found a
habitual offender proceeding is “merely part of sentencing.” State v. Langendorfer,
389 So.2d 1271, 1276– 77 (La. 1980). It is well -settled that, “A defendant is not
convicted of being a habitual offender. Rather, a defendant is adjudicated as a

9

habitual offender as a result of prior felony convictions. The sentence to be
imposed following a habitual offender adjudication is simply an enhanced penalty
for the underlying conviction. ” State v. Parker, 03 -0924, p. 15 (La. 4/14/04), 871
So.2d 317, 325 –326. The only appella te review ongoing here pertains to
defendant’s habitual offender sentence. Direct review of the conviction itself
ceased before November 1, 2017.
Having taken a winding route required by the procedural history, we finally
reach the central question presented: is the 60-year sentenced imposed on this
defendant as a second- felony offender prohibited by La. Const. Art. 1, § 20?
Defendant contends that it is for the following reasons. He has never been
convicted of a crime of violence , and his non -violent criminal activity has been
sporadic, as reflected in the predicate felonies alleged in the habitual offender bill
of information, which convictions occurred in 1993, 1995, and 2004. The 60-year
sentence is the maximum, which is reserved for the “worst kind of offender,” State
v. Quebedeaux, 424 So.2d 1009, 1014 (La. 1982), which he is not. Because he was
43 years old when sentenced as a habitual offender, the 60-year term of
imprisonment is effectively a life sentence, unless he is paroled. Although the 2017
amendment to the habitual offender law may not apply, the legislature ’s changed
views with regard to the appropriate sentencing ranges should still be considered.
See State v. Clark , 391 So.2d 1174, 1176 (La. 1980) (“Inherent in mitigatory
changes in penalty provisions of an offense is a legislative determination that the
present law is inappropriate . . . and that the lesser penalty is sufficient to meet the
legitimate ends of the criminal law.”).
Finally, defendant cites recent decisions in which lengthy sentences imposed
for non -violent drug crimes have been found to be excessive , and in particular

10

State v. Mosby , 14 -2704 (La. 11/20/15), 180 So.3d 1274. In Mosby , this court
found that a 30-year sentence imposed on a non-violent, 72 -year-old, wheelchair-
bound, fourth-felony offender with a history of using and distributi ng cocaine was
grossly out of proportion to the severity of the offense, amounted to nothing more
than purposeful imposition of pain and suffering, was unconstitutional, and,
indeed, unconscionable.
The 60 -year sentence here is the maximum authorized under the Habitual
Offender Law, as it existed at the time of the crime. A permissible sentence under
Louisiana’s habitual offender sentencing scheme may still violate a defendant’ s
constitutional right not to be subjected to excessive punishment. State v.
Sepulvado, 367 So.2d 762 (La 1979). A sentence is unconstitutionally excessive
under Article 1, § 20 of the Louisiana Constitution if it makes no measurable
contribution to acceptable goals of punishment or amounts to nothing more than
the purposeful imposition of pain and suffering and is grossly out of proportion to
the severity of the crime. State v. Dorthey , 623 So.2d 1276 (La.1993); State v.
Johnson, 709 So.2d 672 (La 1998) ; see also State v. Bonanno, 384 So.2d 355, 358
(La. 1980) (“To determine whether the penalty is grossly disproportionate to the
crime we must consider the punishment and the crime in light of the harm to
society caused by its commission and determine whether the penalty is so
disproportionate to the crime committed as to shock our sense of justice.” ), citing
State v. Beavers, 382 So.2d 943 (La. 1980).
For the reasons urged by defendant, w e find the maximum 60-year sentence
imposed under the Habitual Offender Law on this defe ndant is grossly out of
proportion to the crime and to defendant’ s non -violent and sporadic criminal
history. While defendant may have unsuccessfully availed himself of the

11

opportunity for reform twice previously and continued to sell small quantities of
cocaine, imposing a de facto life sentence —which makes no measurable
contribution to acceptable goals of punishment and amounts to nothing more than
the purposeful imposition of pain and suffering— is prohibited by Article 1, § 20 of
the Louisiana Constitution.
However, defendant here agreed to the imposition of an excessive sentence
as part of a plea agreement negotiated with the State in which he admitted his
status as a second rather than a fourth-felony offender. While we do not believe a
defendant can simply acquiesce in the imposition of cruel, excessive, or unusual
punishment prohibited by La. Const. Art. 1, § 20, and by doing so relieve the
judiciary of its “ perpetual role in reviewing sentences for constitutional
excessiveness,” State v. Dorthey , 623 So.2d 1276, 1281 n.11 (La. 1993)—which
role has been recognized by the legislature , and even made a statutory component
of the Habitual Offender Law, see La.R.S. 15:529.1(I)—after finding this agreed-
upon sentence is excessive, we decline to alter the ter ms of only one -half of a
bargain.
As a general matter, in determining the validity of agreements not to
prosecute or of plea agreements, the courts generally refer to rules of contract law,
although a defendant ’s constitutional right to fairness may be bro ader than his or
her rights under the law of contract. See State v. Louis, 94-0761 (La.11/30/94), 645
So.2d 1144, 1148– 49 (court “refer [s] first to the law of contracts for application
by analogy,” but founds its analysis on “considerations of constitutional fairness”),
citing Ricketts v. Adamson , 483 U.S. 1, 16, 107 S.Ct. 2680, 2689, 97 L.Ed.2d 1
(1987); State v. Lewis , 539 So.2d 1199, 1204– 05 (La.1989) (commercial contract
law only a point of departure in construing a plea bargain agreement) . Here, there

12

was a valid plea agreement. The State offered a reduction in the grade of
defendant’s status as a habitual offender and in exchange defendant agreed to the
imposition of a 60-year term of imprisonment. It is our constitutional duty to set
aside that agre ed-upon sentence. However, we do not find that due process or
principles of fundamental fairness require that defendant retain the advantage of
the bargain after the negotiated sentence falls. Instead, the entire agreement should
be rescinded and the parti es restored to their statuses before the agreement to
renegotiate.
Accordingly, we reverse the court of appeal’s decision in State v. Kennon ,
52,661 (La. App. 2 Cir. 5/22/19), 273 So.3d 611, which found defendant’s 60-year
sentence as a second -felony offen der was not excessive. Finding that sentence
excessive, we vacate it. To restore the parties to the status quo ante, we also vacate
the habitual offender adjudication, and we reinstate the original unenhanced
sentences that were affirmed as amended in State v. Kennon , 50,511 (La. App. 2
Cir. 4/13/16), 194 So.3d 661, writ denied, 16-0947 (La. 5/19/17), 220 So.3d 747—
i.e., a term of 30 years imprisonment at hard labor for distribution, with the first
two years to be served without parole eligibility, and a te rm of five years
imprisonment at hard labor for possession, the two terms to be served
consecutively. Finally, we remand to the district court for further proceedings
consistent with the views expressed above.
REVERSED AND REMANDED

1
SUP
REME COURT OF LOUISIANA
No. 2019-KO-00998
STATE OF LOUISIANA
VS.
KEDDRICK KENNON
On Writ of Certiorari to the Court of Appeal, Second Circuit,
Parish of Webster
JOHNSON, C.J., concurs in part and dissents in part and assigns reasons:
I concur only with the majority’s holding that a sentence of sixty years in
prison without parole for selling a small amount of cocaine is constitutionally
excessive. I respectfully dissent from the court’s determination to reinstate the
original sentences. In my view, reinstating even the original unenhanced sentences
of thirty years and five years still violates the Eighth Amendment’s prohibition on
cruel and unusual punishment and is constitutionally excessive under Article I,
Section 20 of the Louisiana Constitution.
Mr. Kennon’s sentence should only reflect the actual and relative harm done
by his act. And in my view, it is time our proportionality review for constitutional
excessiveness under Solem v. Helm, 463 U.S. 277, 284 (1983) took into account the
statistical evidence that minorities are disproportionately targeted, arrested,
prosecuted, and sentenced as habitual offenders for drug crimes.
The record clearly demonstrates that this defendant was specifically targeted
for arrest and prosecution. This is not even the usual case where a confidential
informant called police to report drug sales. Instead an inmate working at the Minden
Police Department wanted to make money for himself and offered to set Defendant
up to be charged with a crime.
09/09/20

2

While working as a trustee for the Minden Police
Department and in anticipation of his upcoming release
from prison, Donald Fields advised Captain Dan Weaver
that he could purchase illegal narcotics from Keddrick
Kennon. Fields volunteered to help the police because he
needed money to support himself once out of prison.
Captain Weaver informed Fields that, as a confidential
informant, he would receive $1,500 each time he
purchased illegal narcotics from Kennon.

State v. Kennon, 50, 511 (La. App. 2 Cir. 4/13/16), 194 So.3d 661, 663. Mr. Fields
attempted several drug purchases and, as a result, Mr. Kennon was convicted of one
count of selling $350 worth of cocaine (occurring on January 24, 2014) and the lesser
count of possession of cocaine (occurring on February 6, 2014). 1 Mr. Kennon was
43 years old when convicted. His sentence of sixty years without parole was
authorized under Louisiana’s habitual offender law, La. R.S. 5:529.1. All of Mr.
Kennon’s previous convictions have been relatively minor drug offenses. He has
never been charged with, or convicted of, a violent crime. According to evidence
offered at sentencing, Mr. Kennon is battling an addiction himself to a prescribed
opioid (Lortab). State v. Kennon, 194 So.3d 661, 667 (2016), R. 836. In his youth,
he raised his younger brother and sister because his mother worked two or three jobs.
Id. According to testimony at his bail hearing, until this arrest in 2014, Mr. Kennon
himself was the main family breadwinner for his wife and their seven-year-old
daughter, working six days a week, eleven hours per day, earning thirteen or fourteen
dollars per hour at a pipe-laying company. R. 174-75.
Data is consistently clear that White and Black Americans sell and use drugs
at roughly the same rates.2 Yet authorities are nearly four times more likely to arrest

1 The record does not contain the exact amount of cocaine Mr. Kennon was alleged to have sold
to Fields. However, each transaction for which Defendant was convicted was worth $350.
According to the United Nations Office on Drugs and Crime, street prices in the United States for
a gram of cocaine in 2014 averaged around $100. U.N.O.D.C, Heroin and Cocaine Prices in
Europe and USA , https://dataunodc.un.org/drugs/heroin_and_cocaine_prices_in_eu_and_usa-
2017 (updated 2018).

2 United States Department of Health and Human Services, Substance Abuse and Mental Health
Services Administration, National Household Survey on Drug Abuse ,
09/09/20

3

and prosecute African Americans for drug offenses than their White counterparts. 3
In Louisiana, the largest racial disparity in the prison population is in those serving
habitual offender sentences for non-violent drug offenses. African Americans
comprise 32% of the state’s population, but according to Louisiana Department of
Corrections data for 2019, 85.7% of prisoners with habitual offender sentences for
drug offenses are Black. Mr. Kennon happens to be one of them.
The habitual offender sentencing provisions of La. R.S. 5:529.1 are
discretionary. A district attorney is never required to file a habitual offender bill to
seek a more severe sentence. But the disproportionate number of Black prisoners
with habitual offender sentences for illicit drug crimes demonstrates that—
statistically—prosecutors exercise their discretion to enhance sentences
disproportionately against African Americans. 4 And while we are not alone, 5 we
should not be less concerned with the racial disparities created by Louisiana
prosecutors’ use of the habitual offender law simply because inequitable results from
this discretionary tool are found throughout the country.
A sentence is unconstitutionally excessive under Article 1, § 20 of the
Louisiana Constitution if it makes no measurable contribution to acceptable goals of
punishment or amounts to nothing more than the purposeful imposition of pain and

https://www.samhsa.gov/data/data-we-collect/nsduh-national-survey-drug-use-and-health
(updated annually).

3 Rothwell, J., Drug offenders in American prisons: The critical difference between stock and flow,
Brookings Institution (2015), https://www.brookings.edu/blog/social-mobility-memos/2015
/11/25/drug-offenders-in-american-prisons-the-critical-distinction-between-stock-and-flow/.

4 Individual prosecutors do not need to be motivated by racial animus or discriminatory intent in
making charging decisions for implicit biases to manifest in clear racial disparities. See generally,
Jerry Kang and Kristin Lane, Seeing Through Colorblindness - Implicit Bias and the Law , 58
UCLA L. Rev. 465 (2010).

5 Numerous studies suggest prosecutors disproportionately target Black men convicted of drug and
property offenses with habitual offender sentences. See, e.g., Stephens v. State , 456 S.E.2d 560,
561 (1995) (though African Americans make up 27% of Georgia’s population, they made up
98.4% of people serving life sentences for drug offenses); Crawford et al., Race, Racial Threat,
and Sentencing of Habitual Offenders, 36 Criminology 3, 481-511 (1998).

09/09/20

4

suffering and is grossly out of proportion to the severity of the crime. State v.
Dorthey, 623 So.2d 1276 (La.1993); State v. Johnson, 709 So.2d 672 (La 1998); see
also State v. Bonanno, 384 So.2d 355, 358 (La. 1980) (“To determine whether the
penalty is grossly disproportionate to the crime we must consider the punishment
and the crime in light of the harm to society caused by its commission and determine
whether the penalty is so disproportionate to the crime committed as to shock our
sense of justice.”), citing State v. Beavers , 382 So.2d 943 (La. 1980). The Eighth
Amendment to the Constitution prohibits cruel and unusual punishments, including
not just barbaric punishments, but also those that are disproportionate to the crime
committed. Weems v. United States, 217 U.S. 349 (1920); Solem v. Helm, 463 U.S.
at 284. A review of whether a sentence is disproportionate under the Eighth
Amendment “should be guided by objective criteria, including (i) the gravity of the
offense and the harshness of the penalty; (ii) the sentences imposed on other
criminals in the same jurisdiction; and (iii) the sentences imposed for commission
of the same crime in other jurisdictions.” Solem, 463 U.S. at 292.
First, under both Louisiana excessiveness review and Eighth Amendment
proportionality analysis, the gravity of the offense considers the absolute and relative
harm done. “[W]e must consider the punishment and the crime in light of the harm
to society caused by its commission.” Bonanno, 384 So.2d at 358. In absolute terms,
Mr. Kennon was convicted of a small drug sale; likely no more than five grams of
cocaine.
Further, in relative terms, selling a few grams of cocaine pales in comparison
to the lethal harm caused by those responsible for the opioid epidemic raging through
North Louisiana, which includes Webster Parish where Mr. Kennon was convicted.6

6 A northwest Louisiana publication recently noted that there is “a growing opioid crisis in North
Louisiana.” Inaugural North Louisiana Rural Opioid Summit Held in Claiborne Parish , BIZ
Magazine, Feb. 2, 2020, https://bizmagsb.com/2020/02/20/inaugural-north-louisiana-rural-opioid-
summit-held-in-claiborne-parish/. Webster Parish has a population of approximately 30,135
adults. According to data from the Drug Enforcement Agency’s Automation of Reports and
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5

In the United States, cocaine kills one quarter the number of people every year that
opioids do.7 Yet—perhaps due to the holistic, public health response to the opioid
crisis taken by authorities8—the corporate executives of pharmaceutical companies
and the medical doctors and pharmacists who are largely responsible for unleashing
these highly addictive drugs into the community are noticeably absent from
Louisiana’s prisons. 9 The harm done by Mr. Kennon, compared to greater harms
committed by others who remain unpunished, should be a relevant consideration in
our proportionality review.
Second, and relatedly, Mr. Kennon’s sentence in comparison to other people
committing similar crimes is extreme. Solem, 463 U.S. at 292. Cocaine use is
prevalent on college campuses across America. Yet it would shock the conscience
of average Americans to see an affluent college student, who sells a few grams of
cocaine to friends, convicted and imprisoned for a long term of hard labor. But

Consolidated Orders System, in 2012, 1,882,760 prescription opioid pain pills moved through
Webster Parish; 62 pills per year for every single person over 18 . See
https://data.cincinnati.com/pain-pills/louisiana/webster-parish/22119/.

7 Hedegaard, H., Bastian, B., Trinidad, J., Spencer, M.R., and Warner M., Regional Differences
in the Drugs Most Frequently Involved in Drug Overdose Deaths: United States, 2017, 68
National Vital Statistics Reports 12 (Oct. 25, 2019),
https://www.cdc.gov/nchs/data/nvsr/nvsr68/nvsr68_12-508.pdf.

8 In February of this year, while Webster Parish prosecutors were preparing their brief in defense
of Mr. Kennon’s sixty-year sentence, the Webster Parish Sheriff’s office attended the inaugural
North Louisiana Rural Opioid Summit, which was designed to “discuss holistic strategies for
success in treatment and prevention.” At the Summit:

[t]opics included: the origin of the problem, strategies for
combatting addiction, treatment as an alternative to incarceration,
overprescribing, battling illegal distribution, new drugs in the
region, community education, how to change public perception of
addiction, Medically-Assisted Treatment (MAT), strategies for
success in the treatment process, youth education and prevention
programs, Naloxone distribution, and personal testimonies from
people in recovery and from family members who lost loved ones to
addiction.

BIZ Magazine, supra, at n. 6.

9 Data from the United States Department of Health and Human Services shows that over 80% of
prescription opioid abusers obtained their opioids from a doctor’s prescription or from a friend or
family member who was prescribed the opioid.

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despite committing an identical transgression to the one Mr. Kennon is convicted of,
one is targeted by law enforcement, and one is not.
Because drug laws and habitual offender sentencing provisions have been
disproportionately used against African Americans, we exacerbate and normalize
this disparity if we ignore it in our proportionality analysis under the Eighth
Amendment. Therefore, when we follow the Supreme Court’s instruction to
consider, in our proportionality analysis, “the sentences imposed on other criminals
in the same jurisdiction,” we should tailor our consideration to counteract the
disproportionate manner in which such laws are enforced against African
Americans. Our proportionality analysis should not simply compare Mr. Kennon’s
sentence to other draconian sentences given to African Americans targeted by police
and prosecuted to the maximum by prosecutors, e.g., State v. Mosby, 14-2704, p. 1
(La. 11/20/15), 180 So.3d 1274; State v. Arceneaux , 18-0642 (La. App. 5 Cir.
4/24/19), 271 So.3d 362. Such a comparison distorts reality. Rather our analysis
should compare Mr. Kennon to “other criminals” who have committed the same
offense without regard to whether they have been targeted by law enforcement and
convicted. When viewed this way, even a thirty-year prison sentence should shock
the conscience.
I recognize that “[t]he legislature has sole authority under the Louisiana
Constitution to define conduct as criminal and provide penalties for such conduct.
La. Const. art. III, § 1.” State v. Kelly, 95–2335, p. 1 (La.2/2/96), 666 So.2d 1082,
1083 (Calogero, C.J., concurring). But nothing prevents reviewing courts from
taking into account the unequal enforcement of the law by police and prosecutors
against a distinctive group—in this case African American men—when assessing
whether a sentence is constitutionally excessive. For these reasons, I dissent from all
but the holding that Mr. Kennon’s current sixty-year sentence is constitutionally
excessive.
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09/09/20

SUPREME COURT OF LOUISIANA

No. 2019-KO-00998

STATE OF LOUISIANA

VS.

KEDDRICK KENNON

On Writ of Certiorari to the Court of Appeal, Second Circuit,
Parish of Webster

CRICHTON, J., additionally concurs and assigns reasons
I agree with the per curiam’s finding that the defendant’s sixty-year sentence
in this case is unconstitutionally excessive under La. Const. Art. I, §20, and should
therefore be vacated and set aside. As the per curiam notes, the record reflects the
sentence imposed is grossly disproportionate to the defendant’s non-violent criminal
history. As such, it cannot stand.
In recent years, this Court has begun confronting the continued use of the
habitual offender bill and, where its applicat ion can result in excessive sentences.
As I have previously noted, while use of the bill is legally available to prosecutors
under appropriate circumstances, the resulting sentence must be able to withstand
constitutional scrutiny upon review . In other words, merely because a district
attorney can file a multiple offender bill of information does not mean that he or she
should do so. Furthermore, just because a district attorney does so and the court
accordingly adjudicates multiple offender status does not mean tha t a downward
departure might not be warranted. State v. Martin, 19-1087 (La. 10/1/19), 280 So.3d
128, writ denied, (Crichton, J., additionally concurring, citing State v. Ellison, 2018-
0053, p. 6 (La. 10/29/18), writ denied, 255 So.3d 568, 572 (Crichton, J., additionally
concurring) (“[U]se of the Habitual Offender Law by prosecutors should be
cautiously exercised wit h reasonable discretion.”); State v. Moore , 18 -130 (La.

2

1/14/19), 261 So.3d 766 (Crichton, J., additionally concur ring) (“[T]he sentence of
20 years hard labor as a multiple offender, where the defendant has no convictions
of crimes of violence and the conviction at issue arises from marijuana charges, is
excessive.”); State v. Guidry , 2016 -1412 (La. 3/15/17), 221 So. 3d 815, 831
(Crichton, J., additionally concurring) (“[T]he abusive frequency with which a de
minimis number of jurisdictions invoke habitual offender laws against non- violent
actors appears to do little to protect the people of Louisiana, and depletes the already
scarce fiscal resources of this state.”); State v. Hickman, 17-142 (La. 9/29/17), 227
So.3d 246, writ denied, (Crichton, J., additionally concurring) (. . . . “[U]nder an
appropriate set of facts, I believe a trial court can impose a downward departure for
certain non-violent offenses.”) (internal citations omitted) ; State v. Hagans, 2016-
0103, p. 1 (La. 10/17/16), 202 So.3d 475, writ denied, (Crichton, J., concurring)
(noting the trial judge’s downward departure to a lesser sentence for a small amount
of cocaine was within her great discretion under State v. Dorthey, 623 So.2d 1276
(La. 1993)); State v. Ladd , 14 -1611 (La. 3/27/15), 164 So.3d 184 (Crichton, J.,
concurring for reasons assigned by Knoll, J., agreeing with the Court’s remand for
resentencing and, noting the twenty -year sentence imposed for a non-violent
defendant was harsh). In accord with my views expressed in the aforementioned
cases, I concur with the p er curiam’s finding that, under the facts of this case,
defendant’s sixty-year sentence as a habitual offender, which essentially amounts to
a life sentence, is excessive.
While I agree that the record here does not support the imposition of a sixty -
year sentence, I write separately to note my view that this C ourt should also offer
the district court guidance, as it has on other occasions, as to the maximum sentence
it can impose under these particular circumstances. Specifically, if defendant is
again adjudicated as a habitual offender after remand, the trial court shall impose a
sentence that would not be grossly disproportionate to the offense and constitute

3

excessive punishment prohibited by A rticle 1 § 20 of the Louisiana Constitution.
See generally State v. Telsee, 425 So.2d 1251 (La. 1983).
As this court noted in Telsee,
[I]nsight into the nature of the offender and his offense may be gained
by asking, for example, whether (1) there is undue risk the defendant
will commit another crime, (2) the defendant needs to be
institutionalized, (3) a lesser sentence will deprecate the seriousness of
defendant's crime, (4) defendant’s conduct caused or threatened harm,
(5) defendant has a criminal record, (6) defendant will respond t o
rehabilitation. See La.C.Cr.P. art. 894.1.

Another factor is comparison of the defendant's punishment with the
sentences imposed for similar crimes by the same court and other
courts.

Telsee, 425 So.2d at 1253 –54. Applying those factors here and under La. C.Cr.P.
art. 529.1, I believe the record before us, and in particular defendant’s non -violent
criminal history, can only support a sentence of no more than thirty years
imprisonment at hard labor for distribution of cocaine, regardless of whether
defendant is ultimately sentenced as a second or fourth-felony offender . Ladd,
supra; State v. Ross, 15-1113 (La. App. 4 Cir. 12/21/16), 207 So.3d 511, writ denied,
17-0394 (La. 9/22/17), 227 So.3d 826; State v. Johnson, 16-0259 (La. App. 4 Cir.
12/21/16), 207 So.3d 1101, writ denied, 17-0119 (La. 2/2/18), 233 So.3d 616; State
v. Dowell, 16-0371 (La. App. 4 Cir. 8/10/16), 198 So.3d 243. This is in harmony
with not only this Court’s recent focus on multiple offender sentences that run afoul
of Article 1 § 20 of the Louisiana Constitution, but also with the legislature’s 2017
amendment to the Habitual Offender Law, La. R.S. 15:529.1, by Acts 282. As noted
by the per curiam, the legislature amended the statute to not only reduce sentences
for certain second, third, and fourth-felony offenders, but also to instruct sentencing
courts to consider whether mandatory minimums would be constitutionally
excessive under the criteria set forth in State v. Dorthey, 623 So.2d 1276 (La. 1993).
Finally, I also write separately to highlight the paramount importance of strict
adherence to the record on appellate review and the duty imposed upon us to limit

4

our review to only the evidence in the record before us. “It is well-settled that this
Court will only deci de cases on the record before us. ” State in Interest of K.L.A.,
2014-1410 (La. 6/30/15), 172 So. 3d 601, 606 , citing La. C.C.P. art. 2164 (“The
appellate court shall render any judgment which is just, legal, and proper upon the
record on appeal.”) (emphasis added); see also State v. Manning, 2003 -1982 (La.
10/19/04), 885 So. 2d 1044, 1063, n. 5 (the Court declining to consider defendant’s
references to material outside of the record, stating it is bound to consider only those
exhibits in the record, citing State v. Hilaire, 216 La. 972, 45 So.2d 360, 363 (1950)
(in criminal cases, this Court, as a court of appellate jurisdiction, is bound by the
record)). In light of these principles, in my view, the concurrence in part and dissent
in part goes considerably beyond the facts and record on appeal and is inconsistent
with the rationale of La. C.C.P. art. 2164 and our jurisprudence. See Sanders, Joe
W., “The Role of Dissenting Opinions in Louisiana,” La. L. Rev. Vol. XXIII 673,
June 1963.
The Court’s ruling today is an example of corrective measures with regard to
the misuse of the State’s habitual offender adjudication and sentencing regime in
certain jurisdictions. However, I believe it is important to recognize that this
defendant received his sentence because of his convictions for five felony crimes
and not because members of the judic iary involved in this case deviated from their
constitutional duty to apply the law impartially to the facts in the record.

SUPREME COURT OF LOUISIANA
NO. 2019-KO-0998
STATE OF LOUISIANA
VERSUS
KEDDRICK KENNON
ON WRIT OF CERTIORARI TO THE COURT OF APPEAL,
SECOND CIRCUIT, PARISH OF WEBSTER
CRAIN, J., dissenting.
To get what he asked for – setting aside his agreed-to sentence – defendant is
given exactly what he carefully did not ask for – setting aside his plea agreement.
Defendant’s reluctance is understandable given his sentencing exposure as a fourth
felony offender. The majority correctly recognizes defendant cannot have it both
ways, that is, have his agreed-to sentence reviewed but not the validity of his plea
agreement. R ather than simply rejecting defendant’s effort to do so , the majority
delivers a remedy he did not seek. A remedy contrary to express law and this court’s
precedent.
An agreed-to sentence imposed as part of a valid plea agreement is not subject
to judicial review. La. Code Criminal Procedure article 881.2A(2); State v. Young,
96-0195, (La. 10/15/96), 680 So. 2d 11 71. Article 881.2A(2) is clear: “ The
defendant cannot appeal or seek review of a sentence imposed in conformity with a
plea agreement which was set forth in the record at the time of the plea.” (Emphasis
added.) This article codifies the constitutional declaration that the right to judicial
review may be waived. See La. Const. Art. 1, §19. Until now that principle has
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been routinely applied by this court to deny requests to review sentences imposed
pursuant to a plea agreement.1
The Young court rejected an effort to confine the scope of Article 881.2A(2)
to certain types of plea agreements. In a straightforward application of the article,
this court stated:
Defendant voluntarily and with the assistance of counsel decided to
enter into a plea agreement so he would not be subjected to a term of
imprisonment longer than a total of thirty years for all of the charges
against him. Defendant was sentenced within the agreed upon range.
In fact, defendant was sentenced to a term of imprisonment which was
less than the sentencing cap he pled guilty under. Therefore, we find
La.C.Cr.P. art. 881.2(A)(2) precludes defendant from appealing his
sentence imposed in conformity with a plea agreement which was set
forth in the record at the time of his plea.

State v. Young, 680 So. 2d at 1175.
The majority alludes to , but never expressly approves, court of appeal
jurisprudence holding that a defendant’s “right to appellate review of his sentence”
is “preserved” if the trial court informs the defendant during the plea colloquy that
he can appeal the sentence. Here, the trial court announced the appeal delays after
the plea was accepted. A post-sentence statement granting a non -existent appeal
right is harmless error.
In order to review this sentence, the majority finds the appointment of counsel
at resentencing “an even clearer indication here that the parties and the court
intended for the defendant to be able to seek appellate review of the sentence.”
“Parties” must include the state, and our record does not reflect such an agreement
by the state. The state ha s consistently sought the straightforward application of
Article 881.2A(2). Neither the parties, the trial court , nor this court can create an
appeal right expressly prohibited by Article 881.2A(2).

1 See e.g. State ex rel. Payton v. State, 16-1795 (La. 2/9/18); 235 So. 3d 1098 (per curiam); State ex rel. Rainey
v. State, 16-1439 (La. 10/27/17); 228 So. 3d 193, 194 (per curiam); State ex rel. Banks v. State, 16-1430 (La. 10/27/17);
228 So .3d 195 (per curiam); State ex rel. Jackson v. State, 15-1498 (La. 9/23/16); 200 So. 3d 339 (per curiam).

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Disregarding Article 881.2 infects the plea process with uncertainty ,
jeopardizing the finality of valid plea agreement s. The critical nature of plea
agreements to our criminal justice system has been recognized by the United States
Supreme Court:
Whatever might be the situation in an ideal world, the fact is that the
guilty plea and the often concomitant plea bargain are important
components of this country’s criminal justice system. Properly
administered, they can benefit all concerned. The defendant avoids
extended pretrial incarceration and the anxieties and uncertainties of a
trial; he gains a speedy disposition of his case, the chance to
acknowledge his guilt, and a prompt start in realizing whatev er
potential there may be for rehabilitation. Judges and prosecutors
conserve vital and scarce resources. The public is protected from the
risks posed by those charged with criminal offenses who are at large
on bail while awaiting completion of criminal pr oceedings. These
advantages can be secured, however, only if dispositions by guilty plea
are accorded a great measure of finality.

Blackledge v. Allison, 431 U.S. 63; 97 S. Ct. 1621, 1627-28; 52 L.Ed.2d 136 (1977)
(citations omitted). Article 881.2 serv es this need for finality and should not be
disregarded.
Although it should not be reviewed because the plea agreement is
unchallenged, t he 60-year sentence is constitutional. The majority’s finding of
excessiveness is based upon “defendant’s non-violent and sporadic criminal history”
and the “small quantities of cocaine” involved in the subject transactions. This
attempts to deflect from the violence long associated with drug culture and,
particularly, illegal drug trafficking. In 1991, Justice Kennedy described the
problem:
Possession, use, and distribution of illegal drugs represent one of the
greatest problems affecting the health and welfare of our population.
Petitioner’s suggestion that his crime was nonviolent and victimless,
echoed by the dissent, is false to the point of absurdity. To the contrary,
petitioner’s crime threatened to cause grave harm to society.

Quite apart from the pernicious effects on the individual who consumes
illegal drugs, such drugs relate to crime in at least three ways: (1)
A drug user may commit crime because of drug-induced changes in
physiological functions, cognitive ability, and mood; (2)
A drug user may commit crime in order to obtain money to buy drugs;
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and (3) A violent crime may occur as part of the drug business or
culture. See Goldstein, Drugs and Violent Crime, in Pathways to
Criminal Violence 16, 24 -36 (N. Weiner & M. Wolfgang eds.
1989). Studies bear out these possibilities and demonstrate a direct
nexus between illegal drugs and crimes of violence. To mention but a
few examples, 57 percent of a national sample of males arrested in 1989
for homicide tested positive for illegal drugs. National Institute of
Justice, 1989 Drug Use Forecasting Annual Report 9 (June 1990). The
comparable statistics for assault, robbery, and weapons arrests were 55,
73, and 63 percent, respectively.

Harmelin v. Michigan , 501 U.S. 957, 1002 -03; 111 S. Ct. 2680, 2705 -06; 115
L.Ed.2d 836 (1991) (Kennedy, J., concurring) (some citations and internal quotation
marks omitted). These facts have not changed, only our tolerance for them. In fact,
a cursory review of reported cases in recent months demonstrates how quickly a
“non-violent” drug crime can end in tragedy. See State v. Welch, 19-0826, (La. App.
1 Cir. 2/21/20); 297 So. 3d 23 ( defendant shot victim in head during dispute over
drug sale proceeds); State v. Newman, 19-0361 (La. App. 1 Cir. 9/27/19); 289 So.
3d 59, writ denied, 19-01890 (La. 1/28/20); 291 So. 3d 1060 (defendant fatally shot
victim who allegedly produced a knife during drug transaction) ; State v. Hopkins ,
52,660 (La. App. 2 Cir. 4/10/19); 268 So. 3d 1226, 1228, writ denied, 19-00841 (La.
9/24/19); 278 So. 3d 978 (defendant shot and killed victim on wa y to drug
exchange).
Defendant’s drug dealing touches three decades. His career in crime is
reflected in convictions for distribution of cocaine in 1993, possession of cocaine in
1995, attempted possession of cocaine with intent to distribute in 2004 (pl ed down
from the charge of possession of cocaine with intent to distribute), and possession
and distribution of cocaine in 2015. His last conviction carried the promise of fourth
felony offender status and a mandatory life sentence without the benefit of parole,
probation, or suspension of sentence. See La. R.S. 15:529.1A(4)(b) (prior to Acts
2017, No. 282). Facing this, defendant admitted being a second felony offender in
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exchange for a 60-year sentence, with parole eligibility after only two years. 2 The
sentence as part of that bargain is not unconstitutionally excessive, and I would not
disturb it.

2 At sentencing, La. R.S. 40:967B( 4)(b) restricted parole eligibility for two years for a conviction of
distribution of cocaine. Because the habitual offender statute does not limit parole eligibility for a second -offense
felony offender, the parole restriction on the underlying sentence a pplies to the enhanced sentence. See La. R.S.
15:529.1A(1) and G; State v. Tate, 99-1483 (La. 11/24/99), 747 So. 2d 519, 520 (per curiam).

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