State Of Louisiana VS Rocky Lee Danos
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STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT NO 2008 KA 2085 STATE OF LOUISIANA VERSUS ROCKY LEE DANOS Judgment Rendered Appealed from JUL 2 2 2009 the 32nd Judicial District Court In and for the Parish of Terrebonne Louisiana Case No 483 546 The Honorable John R Walker Joseph L Waitz Jr Counsel for Attorney Ellen Daigle Doskey Assistant District Attorney Louisiana John T Appellee State of Louisiana District Houma Judge Presiding Bourgeois Thibodaux Counsel for Defendant Louisiana BEFORE Rocky KUHN GUIDRY AND GAIDRY JJ i KJ hill J c tJ 1 Cu lS 9 Appellant Lee Danos tJ 1 4 JVS cm p f GAIDRY J Defendant Lee Danos Rocky DWI driving while intoxicated 14 98 E Pursuant to but reserved his victims right See State labor to sixty days appeal the trial court of that 20 000 00 offense to court served be court 584 s La court also plea of guilty to fine of to s sentence defendant the s parole or 5 000 00 and the victims in the to to twelve years serve of probation a R S In accordance with 1976 imposed ordered defendant consecutively a order of restitution sentenced defendant restitution to pay The trial violation of La a being without benefit suspension of sentence The trial ordered defendant fourth offense Crosby 338 So 2d v charged by bill of information with plea agreement defendant entered a the plea agreement the trial at hard was amount of for DWI fourth for sentence his conviction for DWI third offense Defendant Can the trial 1 evidence 2 as to the court amount following as error order restitution when there is no of restitution in the proceedings of restitution on top of a large fine and hard labor sentence cruel and unusual punishment Is the long the appeals citing Because imposition find the we evidentiary hearing on the order of restitution and assignment of error assignment of first amount of restitution pretermit Defendant s error we vacate requires a the trial court s s remaining are otherwise discussion of defendant conviction and sentence full affirmed Immediately prior to defendant entering his guilty plea in the present case defendant entered a guilty plea to DWI third offense in State v Danos docket number 477 220 sentenced Thirty Second Judicial District Court Parish of Terrebonne The trial court I defendant to serve three years at hard labor with thirty days of sentence second offense in docket number 388 543 and to be served without benefit a fine of suspension probation parole Defendant acknowledged an August 23 2002 conviction for DWI first offense number 02 695 01 02 Houma City Court and a February 10 2004 conviction of or to pay 2 000 00 in docket for DWI Seventeenth Judicial District Court Parish of Lafourche 2 FACTS On on August Louisiana 18 2006 defendant 56 Highway in Chauvin oncoming lane of traffic while passing head with on a Joshua Miller vehicle driven was a Defendant After was A four year old child vehicle s the windshield of his vehicle defendant wreckage blood A vehicular accident vehicle in his lane and collided partially ejected through Chaubert Medical Center subsequently a by Allie Authement from the a Defendant had moved into the passenger in Authement extricated being involved in was was sample collected revealed his blood alcohol level was 19 grams transported from to defendant percent RESTITUTION In defendant s first erred in ordering restitution restitution in the During three when there he contends the trial error was no evidence as court to the amount of proceedings the in the days of assignment sentencing the prosecutor referenced that Miller spent the accident for observation and that hospital following Authement sustained neck a injury and underwent surgery and physical therapy Authement would undergo soon that the doctors would a a shattered left wrist for which she The prosecutor further stated that series of injections for her neck take it from there to see injury and if surgery would be necessary in the future In ordering restitution the trial court that the medical bills that have been incurred treatment will exceed Prior to had to be pursuant January by The Court understands the victims and the expected 100 000 00 1 accomplished to stated 2000 the collection of restitution from in the criminal courts either La Code Crim P art 895 A 3 as 7 a a defendant condition of probation or La Code Crim P art 895 1 A which the least some of the sentence itself portion However with the enactment of La Code Crim P suspended effective meant that at 1 January sentence 2000 restitution be can now 883 2 art implemented as was part of itself without need of probationary conditions Louisiana Code of Criminal Procedure article 883 2 A provides in pertinent part In all cases court finds an pecuniary actual in any case where the court finds that costs have been incurred by the victim in connection with a criminal loss to a victim in which the the trial prosecution restitution shall or court to the victim shall order the defendant as part of any usually of hearsay and innocence is prejudicially g the broad so false determination 219 court arrest as well court as or State defendant has a v Myles 94 0217 pp 2 3 the trial conviction records due process misleading information that varied are courtroom at scope of information available to the court for Because the purposes e by the sentencing excluded from the and may include evidence or provide that the impose Sources of information relied upon guilt sentence to right may affect the La 6 3 94 sentencing to rebut sentencing 638 So 2d 218 per curiam In the offered present by the case State at the assertion that the victim 100 000 00 there s was no testimony sentencing hearing costs and We note that Authement to expected was present documentary evidence support the trial court or treatment at the would s exceed hearing but did not testify While a sentencing Crim P art we recognize court we 883 2 nor misleading information there is cannot a broad range of information available ignore the mandatory the defendant Moreover s we 4 due process note that nature right to of La to Code rebut false or although defendant pled guilty trial to the instant offense he court order of restitution s and because there court s was no award of restitution for the trial court to See State restitution per curiam 2 v to we remand this an AFFIRMED ORDER La unlike the codal authority 5 base the trial court the in order amount of 965 So 2d 865 4 881 AFFIRMED AND VACATED at issue in the 883 2 A on 10 5 07 IN CASE HEARING We note that the authorization for restitution in that matter 14 102 2 0 to the trial SENTENCE REMANDED FOR EVIDENTIARY 2 which evidentiary hearing See also La Code Crim P art RESTITUTION on matter to Walder 2007 0198 appeal the to Under these circumstances the victims evidence introduced conduct CONVICTION PART specifically reserved the right present was case based on La RS La Code Crim P art STATE OF LOUISIANA FIRST CIRCUIT COURT OF APPEAL VERSUS STATE OF LOUISIANA ROCKY LEE DANOS KUHN J n r 2008KA2085 concurring I agree with the result to remand record is I complete for consideration of defendant that defendant neither out point complaint is solely that the him A more an sentence issue that has accurate way objected misleading the introduction of any against justifiable as a of not to nor was been addressed addressing this issue is placed if defendant wishes his hold that has information that the of In of object sentence to as as due process to right as false or s assessed that excessiveness to pay cannot amount such restitution rebut false This of To misleading or holding implies misleading because this one where defendant did as not object that ensure not complain no need for a review the on denial of no rebut false or to a no mandatory provided need ascertain whether misleading information 1 when any information the order of restitution there is suggested by the plurality opinion to amount is adversarial and suggests that there is imposed and did right Clearly defendant in the record about the ability appeal rights misleading insofar the record to note But disposition of this appeal will make that determination in order to such was our in this as error for the remand is unnecessary information due process s cases restitution or to appeal defendant false justification moment defendant courts as due process a by claim sentence excessive because of the restitution owed and defendant assigned false information or be considered unless there is evidence excessive s that the to insure measure was to review defendant s has been violated Otherwise PSI this false PSI for court or every time the trial court relies example has a in duty fashioning its to review misleading information I agree that an the sentence presentence investigation report plurality whether defendant was violated evidentiary hearing excessiveness claim and on a accordingly holding suggests due process by the trial should be held concur 2 s s in the remand court to s right that to rebut reliance on the address defendant s STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT NUMBER 2008 KA 2085 STATE OF LOUISIANA VERSUS ROCKY LEE DANOS GUIDRY J dissents and GUIDRY J assigns dissenting Relying 965 So on the per curiam at the allow the State apple by virtue of present evidence to sentenced under La C Sandifer 359 So opinion State majority grants the 2d 865 the second bite reasons Cr P 2d 990 La Court on to warranted present Sandifer 359 So 2d matter is not a pursuant to La C Cr P The by out the hearing but did Cr C As P 896 art the order probation it is not are the subject to of restitution to an case such action subject the conduct court to of restitution owed in that at 992 93 that there the State at the 20 000 restitution award and at Supreme Court vacated v in was the modification art 896 majority points evidence offered a matter to the trial court to the trial matter to to La condition of as While it is observed that in State amount time pursuant at any 10 5 07 be described expressly noted that because the conditions of probation modification La support the defendant being additionally the Louisiana 1978 the proper only could remanding this order of restitution and remanded the evidentiary hearing State what 883 2 art Walder 07 0198 v not even testify was no testimony sentencing hearing goes on to point to or documentary support the trial out that the victim was court s present I therefore believe that to remand this matter to the trial on court to allow the the issue of restitution is prosecution an additional improper Accordingly 2 opportunity present evidence I respectfully dissent
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