Shelby Myers Hurd v. State of Alabama

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REL: 05/28/2010 Notice: T h i s o p i n i o n i s s u b j e c t t o formal r e v i s i o n b e f o r e p u b l i c a t i o n i n t h e advance s h e e t s o f Southern R e p o r t e r . R e a d e r s a r e r e q u e s t e d t o n o t i f y t h e R e p o r t e r o f D e c i s i o n s , Alabama A p p e l l a t e C o u r t s , 300 D e x t e r A v e n u e , M o n t g o m e r y , A l a b a m a 3 6 1 0 4 - 3 7 4 1 ((334) 2 2 9 - 0 6 4 9 ) , o f a n y t y p o g r a p h i c a l o r o t h e r e r r o r s , i n o r d e r t h a t c o r r e c t i o n s may b e made b e f o r e t h e o p i n i o n i s p r i n t e d i n Southern R e p o r t e r . ALABAMA COURT OF CRIMINAL APPEALS OCTOBER TERM, 2009-2010 CR-09-0331 S h e l b y Myers Hurd v. S t a t e o f Alabama Appeal MAIN, from Lauderdale C i r c u i t (CC-09-76) Judge. Shelby Myers Hurd pleaded endangerment, one Court count violation a violation o f misdemeanor guilty t o one c o u n t o f r e c k l e s s o f § 13A-6-24, A l a . Code driving o f § 3 2 - 5 A - 1 9 1 , A l a . Code under 1975, the influence, 1975, a l l a r i s i n g and a out of CR-09-0331 an automobile accident B r a n d y T i n g l e , was i n which the passenger injured. a 12 m o n t h s ' i m p r i s o n m e n t to time served ordered him "Objection the order: court denied. Whether restitution been $20,000 raises four (1) evidence supervised t o pay in an court sentenced i n each case but s p l i t to R e s t i t u t i o n trial Hurd with The t r i a l in his vehicle, This issues and M o t i o n appeal on amount and i n c l u d e d c l a i m e d Hurd was the the erred not by trial court erred and of whether the t r i a l order the method of c o u r t e r r e d by n o t r e n d e r i n g to circumstances state i t s findings, the the by not amount payment; (3) court erred underlying facts by and t h e r e o f , and t h e manner and method o f payment i n written restitution In the by i t s restitution on t h e r e c o r d ; a n d ( 4 ) w h e t h e r t h e t r i a l failing its and which t h a t had not the s t a t u t o r y f a c t o r s i n determining restitution an awarding supported considering manner and restitution future expenditures i n c u r r e d ; ( 2 ) whether filed to Vacate," from court that months followed. appeal trial the sentence f o r 12 in restitution. Order the probation him t o reviewing discretion vested these order. claims, i n the t r i a l we court. 2 are mindful "'The p a r t i c u l a r of the amount CR-09-0331 of restitution almost parte is to totally Stutts, v. State, 456 So. award. the 2d 431, 2d 355, 356 we Stutts, review the (Ala. will 897 not So. the the following d e t e r m i n i n g the of 433 (Ala. at a trial 2004), Crim. trial 433. App. a must have for considerations for manner, method, or the 1983), aff'd, abuse this an Court abuse with C o d e 1975, restitution to "(1) The f i n a n c i a l r e s o u r c e s of the defendant and the victim and the burden t h a t the manner or method of r e s t i t u t i o n w i l l impose upon the v i c t i m or the defendant; "(2) The ability of the defendant to pay restitution on an installment basis or on other c o n d i t i o n s t o be f i x e d by t h e court; " ( 4 ) Any b u r d e n o r a direct or indirect criminal acts; on or h a r d s h i p upon the v i c t i m as result of the defendant's 3 of the judge "(3) The anticipated rehabilitative effect d e f e n d a n t r e g a r d i n g the manner of r e s t i t u t i o n method of payment; to lists ordered: the the of restitution sentencing amount of Ex Clare complied S e c t i o n 15-18-68, A l a . left quoting court's action be judge.'" clear However, f o r court's court the necessity Absent overturn 2d of (Ala. 1984). trial trial statutory directives. must discretion So. 357 discretion, which So. 2d properly matter 897 456 discretion, a in be CR-09-0331 being "(5) The m e n t a l , of the v i c t i m . " Rule 26.11(a), resources payment and financial Ala.R.Crim.P., provides: of r e s t i t u t i o n will impose how much r e s t i t u t i o n whether t o be p a i d time should enter a w r i t t e n order be given should "[T]he be indicate f o r payment." of r e s t i t u t i o n compliance with and shall The trial that in collected, length court of shall " s t a t i n g i t s f i n d i n g s and t h e r e o f " as r e q u i r e d by That order shall § 1 5 - 1 8 - 6 8 , A l a . Code 1 9 7 5 , a n d R u l e state the specific amount i m p o s e d and t h e manner o r method o f payment. of restitution See § 1 5 - 1 8 - 7 0 , Code 1 9 7 5 . The its or by i n s t a l l m e n t s and what § 1 5 - 1 8 - 6 9 , A l a . Code 1975 ( e m p h a s i s a d d e d ) . Ala. financial considered i s t o be p a i d the u n d e r l y i n g f a c t s and c i r c u m s t a n c e s 26.11 well and o b l i g a t i o n s o f t h e defendant and t h e burden determining i.e., physical trial sentencing restitution State's a s e n t e n c e d H u r d on S e p t e m b e r 3, 2 0 0 9 . order, issue motion conducted court the t r i a l would filed on restitution remain October hearing court open indicated f o r 30 15, 2009, on November In that the On the days. the t r i a l 10, 2 0 0 9 . court 1 At H u r d a p p e a r s t o make a j u r i s d i c t i o n a l argument i n h i s b r i e f t o t h i s Court. We n o t e t h a t i t i s w i t h o u t m e r i t . See H i l l v . B r a d f o r d , 565 So. 2d 208, 210 ( A l a . 1990) ( h o l d i n g 1 4 CR-09-0331 that hearing, and the State presented Tingle's Tingle grandmother, Brenda testified injuries as numerous broken a teeth. Tingle injuries and m e d i c a l Hill of ribs, i n her face, provide that result stitches could testimony also the accident: The State which was admitted testified in offered over multiple as to her the matter. the medical "State's Exhibit defense counsel's t o two a d d i t i o n a l m e d i c a l Tuscaloosa ankle, and l o s s o f a l l h e r confusion t o t a l e d $14,431.85, as l i s t e d A." left neck, bills g r a n d d a u g h t e r h a d i n c u r r e d as a r e s u l t o f i n j u r i e s the a c c i d e n t following but i n d i c a t e d that her grandmother about that and liver, some the broken back a lacerated information testified experienced fractured bills Tingle Hill. she expressed from Brandy bills that suffered i n i n "State's A" into Exhibit evidence, objection. received and N o r t h Alabama N e u r o l o g i c a l , her 2 from Hill CBSI i n t h e amounts that trial court d i d not lose jurisdiction to enter restitution award 30 days after sentencing and that r e s t i t u t i o n order e n t e r e d by t r i a l c o u r t 15 months after s e n t e n c i n g was a p p r o p r i a t e ) ; See a l s o S t a t e v. Redmon, 885 So. 2d 850, 853 ( A l a . C r i m . App. 2004) ("[A] t r i a l c o u r t r e t a i n s j u r i s d i c t i o n t o h o l d a r e s t i t u t i o n h e a r i n g more t h a n 30 d a y s a f t e r the date of sentencing."). We n o t e t h a t r e c o r d on a p p e a l . 2 "State's Exhibit 5 A" i s n o t i n c l u d e d i n t h e CR-09-0331 of $1,019.06 and she had paid $218.00, respectively. between medications and that medications those injuries sustained On were amounts to 3 i n the p e l v i c CT testified 2009. of On to $420 a n d also Hill had medical for restitution sought hardship. Before the court trial scans to and treat was by from the testified the State from 2008. and X-rays hearing the June 4, t h a t the cost $9,000. that $15 the hourly. He had amount no of cause him financial the State informed concluded, hospital in on accident. would and Tingle employed, earning injuries the $2,108 D e c e m b e r 13, $8,000 and He that that Tingle t e s t i f i e d he the Tingle respectively incurred that by were incurred CT between insurance. charges s c a n s c o n d u c t e d on was suffered that prescription for testified expenses $3,420, teeth for charges other r e d i r e c t examination, r e p a i r her $600 testified accident. expenses Hurd t e s t i f i e d He and additional a b d o m i n a l and and miscellaneous cross-examination, $1,750 She other $400 Hill where Tingle was taken T i n g l e l e a r n e d she was p r e g n a n t a r o u n d t h e t i m e o f the accident. The c h i l d was b o r n p r e m a t u r e l y on A u g u s t 30, 2008. The a c c i d e n t o c c u r r e d on F e b r u a r y 2, 2008. Tingle continued t o h a v e a b d o m i n a l p r o b l e m s , h e a r t p a l p i t a t i o n s , and elevated l i v e r enzymes i n December 2008 and J u n e 2009. 3 6 CR-09-0331 following trial the accident court consider adjourned the b i l l s 2009, t h e t r i a l had " w r i t t e n o f f " T i n g l e ' s b i l l . the proceedings, and e n t e r stating an o r d e r . court entered an o r d e r On that The i t would November of r e s t i t u t i o n 12, stating: " T h i s c a u s e came b e f o r e t h e c o u r t o n s t a t e ' s motion for restitution hearing. The c o u r t took t e s t i m o n y and r e c e i v e d e x h i b i t s . " D e f e n d a n t ' s s e n t e n c i n g o r d e r i s h e r e b y AMENDED t o i n c l u d e r e s t i t u t i o n t o be p a i d t o B r a n d y T i n g l e in the amount of twenty thousand dollars ($20,000.00)." (R. 48.) order Hurd and a motion The trial compliance Code 1 975; § Crim. court claims specific which A l a . Code See a l s o C u l p on a remand to the the t r i a l court denied. order i n 1975; § 15-18-69, A l a . 1 975; and Rules 26.11, 710 S o . 2 d 1 3 5 7 706 S o . 2 d 2 6 5 i s necessary i t s restitution restitution a restitution v. S t a t e , Moore v. S t a t e , Therefore, Specifically, make objection has not e n t e r e d 15-18-70, t o supplement Hurd's an § 1 5 - 1 8 - 6 8 , A l a . Code App. 1996); 1996). filed to vacate, court with Ala.R.Crim.P. App. then order (Ala. (Ala. Crim. f o r the trial before we address appeal. on r e m a n d , findings the t r i a l regarding u n d e r l y i n g f a c t s and c i r c u m s t a n c e s 7 the court i s directed to following: that l e dthe t r i a l 1) the court to CR-09-0331 grant restitution; amount of and 4) the to pay issues court's r a i s e d by to On is the any of to time this the of the the court i t to remand that occurred shall to permit Court at REMANDED WITH of and is ability the to a l l circuit the earliest this other order is any additional the existing its previous should include a exhibits offered Pursuant to be action c l e r k to possible Rule supplemented when H u r d p l e a d e d take the in amend restitution. record of conduct evidence the payment; requirements. the of of restitution may to ordered financial discussion statutory return the method that amount court and Hurd's additional hearing release Wise, P.J., manner for The colloquy trial sufficient days the trial Ala.R.App.P., The return the order. of supporting pretermit insufficient determining include We i f i t determines transcript 10(g), the consideration comply w i t h restitution in 3) reasons Hurd's appeal u n t i l remand, hearings the restitution; restitution. modified record 2) guilty. directed make a to in proper time w i t h i n 42 opinion. INSTRUCTIONS. and W e l c h , Windom, and 8 Kellum, J J . , concur.

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