State v. Walder

952 So. 2d 21, 2006 WL 3804659
CourtLouisiana Court of Appeal
DecidedDecember 28, 2006
Docket2006 KA 1239
StatusPublished
Cited by4 cases

This text of 952 So. 2d 21 (State v. Walder) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Walder, 952 So. 2d 21, 2006 WL 3804659 (La. Ct. App. 2006).

Opinion

952 So.2d 21 (2006)

STATE of Louisiana
v.
Janis WALDER.

No. 2006 KA 1239.

Court of Appeal of Louisiana, First Circuit.

December 28, 2006.

*22 Walter P. Reed, District Attorney, Covington, Kathryn Landry, Special Appeals Counsel, Baton Rouge, Counsel for Appellee State of Louisiana.

Marion B. Farmer, Covington, Miles G. Trapolin, New Orleans, Nancy L. Penton, Covington, Counsel for Appellant Janis Walder.

Before: PETTIGREW, DOWNING and HUGHES, JJ.

DOWNING, J.

The defendant, Janis Walder, was charged by bill of information with 123 counts of aggravated cruelty to animals in violation of La. R.S. 14:102.1. She initially pled not guilty to all charges. Prior to trial, the defendant withdrew her not guilty plea and pled guilty as charged. Following a thorough Boykin examination, the trial court accepted the defendant's guilty plea. The defendant was sentenced to imprisonment at hard labor for ten *23 years. The court suspended the sentence and placed the defendant on probation for five years with the following special conditions of probation: 1) pay supervision fees during the course of probation; 2) submit to random drug screens at the request of the probation officer at her expense; 3) the defendant is to have no more than one pet, and it must be spayed or neutered; 4) the defendant is to undergo a mental health evaluation and treatment if recommended; and the defendant is to make restitution if deemed appropriate.[1] The defendant was also ordered to pay a fine of $5000.00 and costs. Following a restitution hearing, the trial court ordered the defendant to pay approximately $46,679.00 in restitution.[2] The defendant moved for reconsideration of the restitution order. The trial court denied the motion. The defendant now appeals urging the following assignments of error:

1) The trial court erred in denying the defendant's Motion to Reconsider the Restitution Order because restitution was improperly ordered as a matter of law as the criminal statute under which the defendant pled contained no provision for the payment of restitution.
2) The trial court erred by denying the defendant's Motion to Reconsider Restitution Order because restitution may only be awarded to those agencies identified by statute.
3) The trial court erred by ordering that restitution be paid because St. Tammany Parish became the owner of the animals after the defendant executed an authentic act of transfer of the animals to the Parish.

Having found patent sentencing error, we vacate the sentence and remand the matter to the trial court for further proceedings.

FACTS

Because defendant stipulated to the factual basis of the offenses and subsequently pled guilty, the facts of the case were never fully developed for the record. Testimony presented at the restitution hearing in this case established that the St. Tammany Parish Sheriffs Office seized approximately 119 dogs, 44 horses and seven turtles from the defendant's Lacombe, Louisiana residence in connection with a complaint of companion animal hoarding. The condition of the defendant's residence was described as deplorable, and many, if not all, of the animals were in extremely poor health.

PATENT SENTENCING ERROR

This court routinely reviews the record for errors patent, whether or not such a request is made by a defendant. Under La.Code Crim. P. art. 920(2), we are limited in our patent error review to errors discoverable by a mere inspection of the pleadings and proceedings without inspection of the evidence. After reviewing the record herein, we have discovered a patent sentencing error that requires us to remand this matter to the trial court for further proceedings.

As previously noted, the defendant pled guilty to 123 counts of aggravated cruelty to animals. Although the August 13, 2005 *24 minute entry reflects that the trial court imposed "concurrent" sentences "on each count," the sentencing transcript for that date indicates otherwise. At the time of sentencing, the trial court stated:

. . . having been adjudicated guilty today in Case Number 379358 of the crime of, counts one through 123, to the crime of Revised Statute 14:102.1(B) aggravated cruelty to animals, the defendant is sentenced as follows:
She is sentenced to 10 years with the Department of Corrections. That would be suspended. She will be placed on five years supervised active probation, subject to the general term and condition of probation, which are a part of the minutes of this court, and which have been discussed with the defendant, and which the defendant indicated that she understood.

The transcript is devoid of any reference to multiple and/or concurrent sentences.

It is well settled that in the event of a discrepancy between the minutes and the transcript, the transcript prevails. See State v. Lynch, 441 So.2d 732, 734 (La. 1983). Thus, the sentence imposed in this case is illegal. Each of the defendant's convictions of 123 counts of aggravated cruelty to animals requires the imposition of a separate sentence. See State v. Soco, 94-1099, p. 2 (La.App. 1st Cir.6/23/95), 657 So.2d 603. Instead of imposing 123 separate sentences, the trial court imposed one sentence of ten years at hard labor, suspended, and one $5,000.00 fine. While a defendant may plead guilty in exchange for a specific sentence or sentencing range or cap as part of a stipulation agreement with the State, such an agreement may not contravene the requirement that a defendant convicted of multiple convictions be sentenced separately for each of those convictions. It is well settled that patent sentencing error occurs when a trial court, in sentencing for multiple counts, does not impose a separate sentence for each count. See State v. Russland Enterprises, Inc., 542 So.2d 154, 155 (La.App. 1st Cir.1989).

Pursuant to Louisiana Constitution Article V, § 10(A), as amended, this court has appellate jurisdiction of criminal matters. It is well settled that a defendant can appeal from a final judgment of conviction only where sentence has been imposed. La.Code Crim. P. art. 912(C)(1); State v. Chapman, 471 So.2d 716 (La.1985) (per curiam). In the absence of valid sentences, the defendant's appeal is not properly before this court. Accordingly, we must vacate the single sentence imposed and remand the matter to the trial court for sentencing in conformity with the law. While we normally would pretermit consideration of any assignments of error, because each of the errors assigned herein challenges the validity of the sentence, in the interest of judicial efficiency, we will consider them.

ASSIGNMENTS OF ERROR 1 & 2

In these assignments of error, the defendant contends the trial court erred in ordering the payment of restitution in this case because La. R.S. 14:102.1, the criminal statute under which she pled guilty, does not contain a provision for the payment of restitution and La.Code Crim. P. art. 895.1, the article governing restitution as a condition of probation, does not provide for restitution to the agencies ordered herein. In response, the State argues that the defendant was made aware at the time of the guilty plea that she would be required to pay restitution. Thus, the State contends, the defendant should not be allowed to attack the payment of restitution, a condition to which she agreed on the record. The State further argues that La. R.S.

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Cite This Page — Counsel Stack

Bluebook (online)
952 So. 2d 21, 2006 WL 3804659, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-walder-lactapp-2006.