State of Louisiana v. Eva J. Van Winkle

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

06-1636

STATE OF LOUISIANA

VERSUS

EVA J. VAN WINKLE

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APPEAL FROM THE
THIRTY-SIXTH JUDICIAL DISTRICT COURT
PARISH OF BEAUREGARD, NO. CR-1080-05
HONORABLE STUART S. KAY, JR., DISTRICT JUDGE

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ULYSSES GENE THIBODEAUX
CHIEF JUDGE

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Court composed of Ulysses Gene Thibodeaux, Chief Judge, Jimmie C. Peters, and
Elizabeth A. Pickett, Judges.

SENTENCE VACATED. REMANDED
FOR RESENTENCING.

David W. Burton
District Attorney - 36th Judicial District Court
James R. Lestage
Assistant District Attorney - 36th Judicial District Court
P. O. Box 99
DeRidder, LA 70634
Telephone: (337) 463-5578
COUNSEL FOR:
Plaintiff/Appellee - State of Louisiana

Mark Owen Foster
Louisiana Appellate Project
P. O. Box 2057
Natchitoches, LA 71457
COUNSEL FOR:
Defendant/Appellant - Eva J. Van Winkle

THIBODEAUX, Chief Judge.

The Defendant, Eva J. Van Winkle, pled guilty to possession of

marijuana, second offense, and D.W.I., second offense. She was sentenced to serve

sixty months at hard labor, with forty-two months suspended, on the marijuana

conviction and placed on supervised probation for three years. The Defendant was

sentenced to a concurrent 180 days in the parish jail on the D.W.I., second offense.

Mrs. Van Winkle appeals her sentence for the marijuana conviction on

the basis of excessiveness. Because the sentence is indeterminate, we vacate the

sentence and remand for resentencing.

LAW AND DISCUSSION

The Defendant received an indeterminate sentence. She was sentenced

to serve sixty months in the Louisiana Department of Corrections with forty-two

months suspended. The Defendant was placed on three years supervised probation

subject to various conditions. For D.W.I., second offense, the Defendant was

sentenced to serve one hundred eighty days in the parish jail. The court ordered that

these two sentences run concurrently with one another, but consecutively to any other

sentence previously imposed.

In imposing the conditions of the Defendant’s probation, the trial judge

stated, “You are to pay an aggregate fine of $1,500 plus costs and fees on both

offenses of conviction. . . .” The Defendant faced a fine of not more than $2,000.00

for possession of marijuana, second offense, and a fine of not less than $750.00 nor

more than $1,000.00 for D.W.I., second offense. Considering the judge’s statement

that the fine was “an aggregate fine . . . on both offenses,” it appears the judge was

actually imposing a fine on each of the two offenses, the total of which was

$1,500.00. This rendered the sentence for possession of marijuana, second offense,

indeterminate in that the judge failed to specify the amount of the fine imposed as a

condition of probation for this offense. Thus, we vacate the Defendant’s sentence for

possession of marijuana, second offense, and remand the case for resentencing with

instructions that the trial court specify the amount of the fine imposed as a condition

of probation.

We note that the trial court ordered that the aggregate fine, costs and fees

be paid “on a pay plan set by your probation officer which shall involve payments of

not less than $100 per month until satisfied.” Recently, in State v. Stevens, 06-818

(La.App. 3 Cir. 1/31/07), 949 So.2d 597, this court approved of the trial court’s order

that the payment plan for the repayment of the fine and court costs be worked out by

the Office of Probation and Parole and approved by the court. Specifically, this court

stated:

[W]e find nothing in the statute which prohibits the trial
court from seeking assistance from outside sources,
including Probation and Parole, in formulating the
appropriate payment plan. In fact, Probation and Parole
may be in a better position to formulate a workable
payment schedule than is the trial court. In taking
advantage of this assistance, the trial court in no way cedes
its responsibility to impose the payment plan, and it only
becomes effective upon approval of the trial court.

Id. at 599-600.

The Stevens decision overruled prior jurisprudence which had required

the payment plan to be established by the trial court. However, Stevens did not

address the issue presented by this case, i.e., whether it is acceptable for the trial court

to delegate the establishment of the payment plan to the Office of Probation and

Parole without requiring approval by the court. We conclude that it is not. Stevens

requires a court-approved pay plan.

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The Defendant contends the sentences imposed by the trial court are

excessive. First, the only sentence before this court for review is the sentence

imposed under docket number CR-1080-2005 for possession of marijuana, second

offense. Additionally, the Defendant challenged her sentence for D.W.I., second

offense, in a writ application which was recently denied by this court. State v. Van

Winkle, an unpublished writ bearing docket number 07-17 (La.App. 3 Cir. 1/29/07).

Discussion of the Defendant’s contention that her sentence for

possession of marijuana, second offense, is excessive is pretermitted by our decision

to vacate her sentence and remand for resentencing.

CONCLUSION

The Defendant’s sentence for possession of marijuana, second offense,

is vacated and the case is remanded for resentencing.

SENTENCE VACATED. REMANDED FOR RESENTENCING.

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