Opinion
No. KA 08 00686.
February 4, 2009.
APPEAL FROM THE FIFTEENTH JUDICIAL DISTRICT COURT PARISH OF LAFAYETTE, NO. 113227 HONORABLE HERMAN C. CLAUSE, DISTRICT JUDGE.
Michael Harson, District Attorney, Lafayette, LA, Counsel for Appellee: State of Louisiana.
G. Paul Marx, Attorney at Law, Lafayette, LA, Counsel for Appellant: Brad Michael Badeaux.
Court composed of JOHN D. SAUNDERS, BILLY HOWARD EZELL, and J. DAVID PAINTER, Judges.
The Defendant, Brad Michael Badeaux, was charged in an indictment filed on October 25, 2006, with two counts of negligent homicide, violations of La.R.S. 14:32, and two counts of negligent injuring, violations of La.R.S. 14:39. The Defendant entered a plea of not guilty on November 28, 2006. On August 14, 2007, the Defendant entered pleas of guilty to two counts of negligent homicide and one count of negligent injuring. The remaining count of negligent injuring was dismissed.
On January 15, 2008, the Defendant was sentenced to serve five years at hard labor on each count of negligent homicide and six months for negligent injuring. All sentences were ordered to run concurrently. The trial court then suspended all but one year of the sentences and placed the Defendant on four years active supervised probation. As a special condition of probation, the Defendant was ordered to pay restitution in the amount of $26,819.21. A Motion to Reconsider Sentence was filed on February 15, 2008, and denied on February 21, 2008.
A motion for appeal was filed on March 5, 2008. The Defendant is now before this court asserting one assignment of error. Therein, the Defendant contends the requirement of "twenty six thousand dollars" in restitution at $130 per week created an unreasonable and constitutionally excessive sentence where the family of the Victim recovered insurance benefits, and he was given a year in jail, meaning he could not be expected to have employment immediately upon release and was probably indigent. We find that this assignment of error lacks merit.
FACTS :
On February 12, 2006, the Defendant negligently killed Judith Gross and Jessica A. Lyons and negligently injured Megan Theriot.
ERRORS PATENT PROCEDURAL ISSUE :
In accordance with La. Code Crim.P. art. 920, all appeals are reviewed by this court for errors patent on the face of the record. After reviewing the record, we find that there are several issues requiring discussion, including an error patent, that there is a procedural issue worth noting, and that the minutes of sentencing are in need of correction.
There is a misjoinder of offenses in the bill of indictment. The bill of indictment charged the Defendant with the following: (1) negligent homicide, a violation of La.R.S. 14:32; (2) negligent homicide, a violation of La.R.S. 14:32; (3) negligent injuring, a violation of La.R.S. 14:39; and (4) negligent injuring, a violation of La.R.S. 14:39.
Louisiana Code of Criminal Procedure Article 493 provides for the joinder of offenses in a single bill under limited circumstances if the offenses joined are triable by the same mode of trial. Counts one and two, which are punishable with or without hard labor, are triable by a six-person jury, all of whom must concur. See La. Code Crim.P. art. 782. Counts three and four, misdemeanors, are triable by a judge without a jury. See La. Code Crim.P. art. 779. Consequently, counts one and two were properly joined, but counts three and four, the misdemeanors, were improperly joined. However, the Defendant did not file a motion to quash the bill of information on the basis of misjoinder of offenses, as required by statute. See La. Code Crim.P. art. 495. Additionally, by entering an unqualified guilty plea, the Defendant waived review of this non-jurisdictional pre-plea defect. See State v. Crosby, 338 So.2d 584 (La. 1976). Thus, this error is precluded from review.
Next, we note that because the negligent injuring charges were not triable by jury, the proper mode of appellate review for these offenses was an application for writ of review, rather than an appeal. See La. Code Crim.P. art. 912.1. Because count three of the bill, negligent injuring, was dismissed, any procedural issue regarding this charge is moot; however, the issue remains for the other count of negligent injuring.
We note that during the sentencing hearing, the trial court mistakenly stated that the Defendant pled to the dismissed charge of negligent injuring and sentenced the Defendant on the dismissed charge to six months imprisonment to run concurrently with the other sentences imposed. In State v. Neville, 572 So.2d 1161 (La.App. 1 Cir. 1990), writ denied, 576 So.2d 46 (La. 1991), footnote number 1, the court explained that any error patent resulting from the state dismissing charges after sentencing would not be reviewed on appeal because the defendant had nothing to appeal. Consequently, we find that no action will be taken on the sentence imposed on the dismissed charge because that sentence is not properly before this court on appeal.
Additionally, we note that the minutes of sentencing and the Commitment reflecting the sentences imposed provides one six-month sentence was imposed.
In State v. Turner, 04-1250 (La.App. 3 Cir. 3/2/05), 896 So.2d 286, writ denied, 05-871 (La. 12/12/05), 917 So.2d 1084, this court severed a misdemeanor conviction for possession of marijuana from the defendant's appeal of two felony convictions. This court ordered the "defendant to file a writ of review regarding the possession of marijuana conviction in compliance with the Rules of Court." Id. at 289. In Turner, the court noted that the defendant did not make any specific arguments regarding the misdemeanor conviction. This court considered the notice of appeal as a notice to file a writ of review within thirty days of its opinion, if the defendant desired to seek review of the misdemeanor conviction.
As in Turner, the Defendant has not raised any assignment of error regarding his misdemeanor conviction. Therefore, we will follow the holding in Turner by severing the misdemeanor conviction from the appeal and ordering the Defendant to file a writ of review regarding the misdemeanor conviction in compliance with the Uniform Rules of Court, if he so desires. Consequently, the error patent review was limited to the felony conviction.
Additionally, the minutes of sentencing are in need of correction. The minutes of sentencing provide in pertinent part: "THE DEFENDANT IS TO PAY RESTITUTION TO THE DISTRICT ATTORNEY'S OFFICE. . . ." However, the transcript of sentencing does not specify that payment is to be made to the District Attorney's Office. Thus, we find that portion of the court minutes is in need of correction to accurately reflect the transcript of sentencing. Accordingly, we instruct the trial court to amend the minutes of sentencing to accurately reflect the transcript of sentencing.
ASSIGNMENT OF ERROR :
The Defendant contends the requirement of $26,000 in restitution at $130 per week created an unreasonable and constitutionally excessive sentence. His contention is based upon the fact that the family of the Victim recovered insurance benefits, and the fact that he was given a year in jail, meaning he could not be expected to have employment immediately upon release and was probably indigent. We find this contention lacks merit.
The payment of restitution ordered in the case at bar was a special condition of the Defendant's probation. Thus, the issue is governed by La. Code Crim.P. arts. 895 and 895.1. Louisiana Code of Criminal Procedure Article 895 provides, in pertinent part:
A. When the court places a defendant on probation, it shall require the defendant to refrain from criminal conduct and to pay a supervision fee to defray the costs of probation supervision, and it may impose any specific conditions reasonably related to his rehabilitation, including any of the following. That the defendant shall:
. . . .
(7) Make reasonable reparation or restitution to the aggrieved party for damage or loss caused by his offense in an amount to be determined by the court[.]
Louisiana Code of Criminal Procedure Article 895.1 provides, in pertinent part:
A. (1) When a court places the defendant on probation, it shall, as a condition of probation, order the payment of restitution in cases where the victim or his family has suffered any direct loss of actual cash, any monetary loss pursuant to damage to or loss of property, or medical expense. The court shall order restitution in a reasonable sum not to exceed the actual pecuniary loss to the victim in an amount certain. However, any additional or other damages sought by the victim and available under the law shall be pursued in an action separate from the establishment of the restitution order as a civil money judgment provided for in Subparagraph (2) of this Paragraph. The restitution payment shall be made, in discretion of the court, either in a lump sum or in monthly installments based on the earning capacity and assets of the defendant.
. . . .
B. When a court suspends the imposition or the execution of a sentence and places the defendant on probation, it may in its discretion, order placed, as a condition of probation, an amount of money to be paid by the defendant to any or all of the following:
. . . .
(5) To the victim to compensate him for his loss and inconvenience. Such an amount may be in addition to any amounts ordered to be paid by the defendant under Paragraph A herein.
At the sentencing hearing, Ted Lyons testified that Judy Groff was his ex-wife and Jessica Lyons was his daughter. Lyons testified that he was seeking restitution for funeral expenses. He further testified that he had received $100,000 in insurance proceeds. A document itemizing the funeral expenses for Judy and Jessica, which totaled $26,891.21, was admitted into evidence.
At the close of the hearing, the trial court ordered the Defendant to pay restitution in the amount of $26,819.21 as a special condition of probation. The money was to be paid during the period of the Defendant's probation in the sum of $130 per week.
In his motion to reconsider, the Defendant asserted the following prior to asking the trial court reconsider the order of restitution:
As this Court may recall, the undersigned counsel was shown a copy of the expenses allegedly paid for the burial expenses. The undersigned counsel did not object to introduction of this document, but objected to the imposition of any amount of restitution, as the family member who sought reimbursement admitted to receiving payment from the insurance company responsible for the financial damages caused by BRAD MICHAEL BADEAUX as a result of the vehicle accident giving rise to the above captioned matter. This family member admitted under cross examination that the insurance carrier paid him one hundred thousand and NO/100 dollars ($100,000.00) for the claims made as a result of the vehicle accident giving rise to the above captioned matter. Obviously, this one hundred thousand dollar payment is well in excess of the surviving family members' out of pocket expenses. The undersigned counsel contends herein that this restitution portion of this judgment is legally inappropriate.
A review of the record does not indicate that defense counsel made such an objection, or that Lyons testified that he received payment from the insurance company responsible for the financial damages caused by the Defendant.
In brief to this court, the Defendant agues that the restitution in this case is limited to the "actual pecuniary loss," which was zero because Lyons was paid $100,000 in damages by an insurance company. The Defendant asserts that he should have been given some consideration for having insurance which responded for him in this case, either as liability or uninsured motorist coverage. Additionally, the trial court violated "the statute" by awarding restitution in the absence of pecuniary losses.
The State asserts Lyons received $100,000 in life insurance proceeds, but paid funeral and medical bills in the amount of $26,819.21. The State further asserts that the payment of the funeral expenses was an actual loss even if Lyons received life insurance proceeds. After reviewing the record, we find that Lyons did not testify regarding the source of the insurance proceeds, nor is that information contained in the record before this court.
Based on the record before the court, we find that Lyons would have incurred an actual pecuniary loss, i.e., an actual loss of money, whether he paid for the funeral expenses using his own money or used money received from insurance proceeds. The real issue is whether the Defendant would be entitled to credit for payment made by an insurance company. This issue was not raised at the sentencing hearing or in the motion to reconsider sentence. Thus, it will not be considered by this court on appeal. See State v. Curtis, 08-99 (La.App. 3 Cir. 6/5/08), 987 So.2d 294.
The Defendant further argues that the sum of $130 per week, which amounts to $563 a month, assessed against him is an impossible task. He asserts there is no evidence to support a finding that he can earn that much upon his release from jail, and imposing such a condition is tantamount to dooming his efforts during the suspended portion of his sentence. Again, this claim was not raised by the Defendant in his motion to reconsider sentence. Thus, they will not be considered by this court on appeal. Id.
For the reasons asserted herein, we find that the sole assignment of error lacks merit. As such, we affirm the trial court's judgment.
CONCLUSION
The Defendant's sentence is affirmed. However, we instruct the trial court to amend the minutes of sentencing to accurately reflect the transcript of sentencing. Additionally, we sever the Defendant's misdemeanor conviction from his appeal and instruct the Defendant that, if he chooses to seek review of his misdemeanor conviction, he should file an application seeking supervisory review with this court within thirty days of our ruling on his appeal.
AFFIRMED, WITH INSTRUCTIONS.
THIS OPINION IS NOT DESIGNATED FOR PUBLICATION. Rule 2-16.3, Uniform Rules, Courts of Appeal.