State v. Tuttle

460 N.W.2d 157, 1990 S.D. LEXIS 133, 1990 WL 120876
CourtSouth Dakota Supreme Court
DecidedAugust 22, 1990
Docket16642
StatusPublished
Cited by31 cases

This text of 460 N.W.2d 157 (State v. Tuttle) is published on Counsel Stack Legal Research, covering South Dakota Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Tuttle, 460 N.W.2d 157, 1990 S.D. LEXIS 133, 1990 WL 120876 (S.D. 1990).

Opinions

SABERS, Justice.

As part of a plea agreement, Warren Tuttle (Tuttle) pled guilty to one count of second degree arson and a second count of arson was dismissed. Tuttle was sentenced to fourteen years in the State Penitentiary, with two years suspended on condition that Tuttle make restitution to the victims of both arsons. Although specifically requested by Tuttle, the trial court did not conduct a hearing regarding restitution. We reverse the restitution portion of Tuttle’s sentence and remand the matter to the trial court for further proceedings in conformity with this opinion.

FACTS

On December 23, 1988, a fire occurred at a trailed owned by Mike Powell (Powell) and rented by Wayne Lewis (Lewis). A second fire occurred on December 24, 1988, in a trailer owned by Myrl Pawlowski (Pawlowski) and rented by Tammy Brooks (Brooks). Tuttle was charged with two counts of second degree arson in connection with the fires and a public defender was appointed to handle his defense. At arraignment, the trial court granted Tuttle’s request for a continuance to consider a proposed plea bargain. On January 20, 1989, Tuttle entered a guilty plea to one count of second degree arson. In return for his guilty plea, the State agreed to dismiss the other arson charge and to fore-go prosecution on a burglary charge and a potential habitual offender charge. Restitution and sentencing were not part of the plea agreement and restitution was not mentioned at the plea hearing.

Following the plea hearing, Tuttle wrote to the trial court and offered to “make payments for restitution” if he were given probation. A presentence report was completed which included a verbatim statement by Tuttle admitting to both arsons.

At sentencing, the trial judge specifically noted that Tuttle had written to the court offering to make restitution. Tuttle objected only to the amount of the State’s restitution request and requested a hearing on restitution. The court did not grant a separate hearing, but rather proceeded with and completed sentencing that day, March 10, 1989. Tuttle was sentenced to fourteen years in the state penitentiary with two years suspended on certain conditions, in-[159]*159eluding restitution to the victims. Tuttle was ordered to pay: $250 to Powell; $1365 to Pawlowski; and, $400 to Brooks. These amounts are the exact amounts recommended in the Victim’s Assistance Report prepared by the Victim’s Assistant of Pennington County, except that the court did not require Tuttle to reimburse Powell’s insurance company.

On April 3, 1989, Tuttle filed a motion to reduce restitution as a result of our March 22, 1989 ruling in State v. Wolff, 438 N.W.2d 199 (S.D.1989). At a hearing on May 1, 1989, the trial court denied the motion for reduction of restitution. Tuttle filed this appeal arguing that the trial court erred in imposing restitution without a hearing and in requiring that Tuttle pay restitution for crimes to which he did not plead guilty.

DECISION

We have previously held that a defendant is entitled to be informed at the plea hearing that restitution may be imposed as part of the sentence. State v. Wolff, 438 N.W.2d 199 (S.D.1989).

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Bluebook (online)
460 N.W.2d 157, 1990 S.D. LEXIS 133, 1990 WL 120876, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-tuttle-sd-1990.