State v. Joseph

916 So. 2d 378, 2005 WL 2864075
Louisiana Court of Appeal·Decided November 2, 2005·No. 05-186·Published·Cited by 13 cases

Opinion

916 So.2d 378 (2005)

STATE of Louisiana
v.
John JOSEPH.

No. 05-186.

Court of Appeal of Louisiana, Third Circuit.

November 2, 2005.

*379 Paula Corley Marx, Louisiana Appellate Project, Lafayette, LA, for Defendant-Appellant John E. Joseph.

Earl B. Taylor, District Attorney, 27th J.D.C., Alisa Ardoin Gothreaux, Asst. District Atty. 27th JDC, Opelousas, LA, for State-Appellee State of Louisiana.

Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, MICHAEL G. SULLIVAN, and ELIZABETH A. PICKETT, Judges.

PICKETT, Judge.

FACTS

The defendant, John Joseph, pled guilty to two counts of armed robbery and one count of aggravated burglary. The facts are taken from the guilty plea proceedings. The defendant, along with a co-defendant, kicked down the front door and entered the home of Irma Dartez. Once inside, the defendant took a gun from Ms. Dartez, while the co-defendant struck another occupant of the home with a bottle of bleach before taking money from her possession. At that point, the two left the scene.

On November 18, 2003, a bill of information was filed charging the defendant, John Joseph, with two counts of armed robbery, a violation of La.R.S. 14:64, and with one count of aggravated burglary, a violation of La.R.S. 14:60. The defendant pled guilty to the charges on May 5, 2004, and was subsequently sentenced to thirty years at hard labor for each of the robbery counts and to fifteen years at hard labor for the aggravated burglary charge, with the sentences to be served concurrently. Additionally, the sentencing court ordered the defendant to pay restitution as required by law.

ASSIGNMENTS OF ERROR

The defendant is now before this court asserting the following assignments of error:

(1) The concurrent thirty year sentences imposed make no measurable contribution to acceptable goals of punishment and are grossly out of proportion to the severity of the crime for this young offender;
(2) The trial court failed to particularize the sentence to this offender;
(3) The sentences imposed are indeterminate, as there is no specification of the amount of restitution nor on which count or counts restitution is owed;
(4) The factual basis for the plea is insufficient to support convictions on two counts of armed robbery; and
(5) In the alternative, if the appeal of Defendant's sentence is held to be procedurally barred, the failure of trial counsel to file a motion to reconsider the sentence or to object to the excessiveness of the sentence constitutes ineffective assistance of counsel.

ERRORS PATENT

In accordance with La.Code Crim.P. art. 920, all appeals are reviewed by this court *380 for errors patent on the face of the record. After reviewing the record, we find there is one error patent that is also assigned as an error.

As claimed by the defendant in Assignment of Error number 3, he received indeterminate sentences. When the trial court imposed the sentences, it simply ordered "restitution as required by law." The Code of Criminal Procedure provides for the imposition of restitution either as a condition of probation (La.Code Crim.P. arts. 895 and 895.1) or as part of the principal sentence (La.Code Crim.P. art. 883.2). Since the trial court did not place the defendant on probation in the present case, we assume it was ordering restitution pursuant to La.Code Crim.P. art. 883.2. Article 883.2 provides:

In all cases in which the court finds an actual pecuniary loss to a victim, or in any case where the court finds that costs have been incurred by the victim in connection with a criminal prosecution, the trial court shall order the defendant to provide restitution to the victim as a part of any sentence that the court shall impose.

This court has held that when a trial court fails to state the amount of restitution owed as a condition of probation, the sentence is illegal and the case must be remanded for resentencing. State v. Dauzat, 590 So.2d 768 (La.App. 3 Cir.1991), writ denied, 598 So.2d 355 (La.1992), cf. State v. Randle, 02-309, 02-310 (La.App. 3 Cir. 10/2/02), 827 So.2d 657. In Randle, this court found the trial court rendered an indeterminate sentence when it failed to set the amount of restitution. Although the record was not clear as to whether the trial court ordered restitution as a condition of probation or pursuant to La.Code Crim.P. art. 883.2, this court found Article 883.2 did not apply since the offense was committed prior to the article's effective date. Although we have not previously addressed the issue of a trial court failing to set the amount of restitution when it is imposed pursuant to La.Code Crim.P. art. 883.2, the same reasoning applies. The failure to state the amount of restitution renders a sentence indeterminate and thus illegal, necessitating that the sentence be vacated and the case remanded for resentencing.

Because the trial court did not specify on which count or counts the restitution was ordered, all sentences must be vacated and the case remanded. The trial court is instructed that if restitution is ordered it must specify on which count or counts the restitution is being imposed as well as the amount of restitution owed. See State v. Williamson, 04-1440 (La.App. 3 Cir. 3/2/05), 896 So.2d 302.

In Assignment of Error number 3, the defendant argues that when the case is remanded for resentencing, a hearing should be held, during which the parties should be given an opportunity to present evidence concerning the amount of restitution owed. The record does not indicate that a restitution hearing has been held. In State v. Sandifer, 359 So.2d 990 (La. 1978), the supreme court remanded the case for a restitution hearing when one of the defendants contested the amount of restitution awarded. The Louisiana Supreme Court noted:

The record is silent as to the trial judge's reasons for ordering restitution far in excess of the value of the merchandise. . . . [H]ence, in affirming the sentence, we will vacate that condition of probation and instruct the trial judge to conduct a hearing to afford the defendant an opportunity to demonstrate that the amount of restitution is excessive and to fix the amount of restitution in the light of the showing made.

Id. at 992-93 (emphasis added).

In State v. Spell, 449 So.2d 524 (La.App. 1 Cir.), appeal after remand, 461 So.2d 654 *381 (La.App. 1 Cir.1984), the first circuit followed Sandifer by stating:

We cannot determine fairly whether $60,000 is a reasonable or excessive sum without knowing more facts about the victim's injury and his residual circumstances. These facts are necessary in order for us to determine the victim's loss and inconvenience. Necessarily relevant is defendant's ability to pay the sum ordered.
. . . .
The trial court shall hold a hearing on the matter, allowing both sides to make arguments and present evidence showing the appropriate amount of restitution. After considering and articulating all factors, the court shall determine the appropriate sum to compensate the victim for his loss and inconvenience.

Id. at 526 (emphasis added).

Although the above cases involved restitution ordered as a condition of probation, this distinction does not merit a dif

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