State of Louisiana v. Victor Wayne Loyd

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

18-968
STATE OF LOUISIANA
VERSUS
VICTOR WAYNE LOYD
FRR ICK
ON APPEAL FROM

THIRTY-FIFTH JUDICIAL DISTRICT COURT
GRANT PARISH, NO. 18-346
HONORABLE WARREN D. WILLETT, DISTRICT JUDGE

ek ee Rk
VAN H. KYZAR

JUDGE

3 2 2k 2k ok 3k ok ok ok ok

Court composed of Sylvia R. Cooks, John E. Conery, and Van H. Kyzar, Judges.

CONVICICTION AFFIRMED. SENTENCE VACATED. REMANDED
FOR RESENTENCING WITH INSTRUCTIONS.

Douglas Lee Harville

Louisiana Appellate Project

P.O. Box 52988

Shreveport, Louisiana 71135-2988

(318) 222-1700

COUNSEL FOR DEFENDANT/APPELLANT:
Victor Wayne Loyd

James P. LeMoine

District Attorney

Renee W. Nugent

Assistant District Attorney

Thirty-Fifth Judicial District

200 Main Street

Colfax, Louisiana 71417

(318) 627-2971

COUNSEL FOR APPELLEE:
State of Louisiana

KYZAR, J.

Defendant, Victor Wayne Loyd, appeals his conviction for unauthorized use
of a motor vehicle, a violation of La.R.S. 14:68.4. For the reasons set forth herein,
Defendant’s conviction is affirmed, the sentence is vacated, and the case remanded
for resentencing with instructions.

DISCUSSION OF THE RECORD

On May 21, 2018, the State filed a bill of information charging Defendant
with unauthorized use of a motor vehicle, in violation of La.R.S. 14:68.4. On July
5, 2018, Defendant pled not guilty and waived his right to a trial by jury. The district
court heard evidence and argument on August 9 and took the matter under
advisement.

The evidence adduced at trial revealed that, in September of 2017, Carol
Spotsville, a relative of Defendant, made a verbal agreement with him to repair a
dented area on her 2006 Hyundai Santa Fe. She agreed to have Defendant do the
repair work chiefly because he was charging her a low price. Also, he told her he
would have the job done by noon the next day. Defendant drove the victim’s car
from her house to the area he was using as a body shop. The next day, he called to
tell her he could not have the car ready by noon, but that it would be ready by 3:00
p.m. She testified that she repeatedly called him after the car was not returned after
3:00 but got no answer. She did not hear from him until approximately 8:30 p.m.,
when she called, and he answered only to tell her he had driven the car into
Alexandria and collided with another vehicle.' The victim testified that Defendant
was not authorized to drive the vehicle; she thought his girlfriend (his wife by the

time of the trial) was going to drive it.

| While the victim testified that Defendant provided the information about the accident in
response to her call, Defendant stated that he called the victim some 30 minutes after the accident
to tell her what had occurred.

On August 16, 2018, the court found Defendant guilty as charged. On
September 13, the court sentenced Defendant to two years at hard labor, to run
consecutively to any other term. Also, he was ordered to pay a fine of seven hundred
and fifty dollars and restitution to the victim. The trial court recommended work
release, if available.

Defendant now seeks review by this court and assigns as a single error that
there was insufficient evidence to support his conviction for unauthorized use of a
motor vehicle.

SUFFICIENCY OF THE EVIDENCE

In his sole assignment of error, Defendant argues the evidence adduced at trial
was insufficient to support his conviction for unauthorized use of a motor vehicle.
Specifically, he argues the State failed to prove beyond a reasonable doubt that his
use of the victim’s vehicle was unauthorized. The general analysis for insufficiency
claims is well-established:

When the issue of sufficiency of evidence is raised on appeal, the
critical inquiry of the reviewing court is whether, after viewing the
evidence in the light most favorable to the prosecution, any rational trier
of fact could have found the essential elements of the crime proven
beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 8.Ct.
2781, 61 L.Ed.2d 560, rehearing denied, 444 U.S. 890, 100 S.Ct. 195,
62 L.Ed.2d 126 (1979); State ex rel. Graffagnino v. King, 436 So.2d
559 (La.1983); State v. Duncan, 420 So.2d 1105 (La.1982); State v.
Moody, 393 So.2d 1212 (La.1981). It is the role of the fact finder to
weigh the respective credibility of the witnesses, and therefore, the
appellate court should not second guess the credibility determinations
of the triers of fact beyond the sufficiency evaluations under the
Jackson standard of review. See State ex rel. Graffagnino, 436 So.2d
559 (citing State v. Richardson, 425 So.2d 1228 (La.1983)). In order
for this Court to affirm a conviction, however, the record must reflect
that the state has satisfied its burden of proving the elements of the
crime beyond a reasonable doubt.

State v. Kennerson, 96-1518, p. 5 (La.App. 3 Cir. 5/7/97), 695 So.2d 1367, 1371.
Unauthorized use of a motor vehicle is defined by La.R.S. 14:68.4(A), which

states in pertinent part: “Unauthorized use of a motor vehicle is the intentional

2

taking or use of a motor vehicle which belongs to another, either without the other’s
consent, or by means of fraudulent conduct, practices, or representations, but without
any intention to deprive the other of the motor vehicle permanently.” The key issue
that arose at trial was whether Defendant’s use of the Hyundai was unauthorized.
The victim testified that he was not authorized to drive the vehicle at any time; she
expected his girlfriend, Doris Loyd, to drive if there was any need. Doris and
Defendant both testified that he was authorized to drive the Hyundai. Defendant
testified that the victim’s husband saw him drive the Hyundai when Defendant
picked it up at the victim’s residence. Thus, resolution of the issue, and ultimately
the verdict, hinged upon a credibility determination.
The trial court explained its ruling at some length:

BY THE COURT: You can have a seat over there.
Counsel, last week we had a bench trial on a charge of Unauthorized
Use of a Movable, um, after the conclusion of the trial, the Court um,
recessed the trial to allow me to research the jurisprudential handling
of consent, which I think was the primary - - one of the primary issues
in the case, was whether um, or not [Defendant], had the consent of Ms.
Spotsville to use her vehicle - - her SUV uh, on the - - at the time in
question.

And um, the Court uh, did - - the Court has researched the
jurisprudence involving the Unauthorized Use of a Motor Vehicle, the
Court has - - also received a case that was submitted by Mr. Wilson for
the Court’s consideration.

And the - - the jurisprudence um, the jurisprudence seems to
focus on - - due to the fact that it is a crime that re - - requires intent,
uh, the jurisprudence seems to focus on the Defendant’s intent in
connection with the consent. Um, and from a civil standpoint, I think
for both parties to have an agreement, they both have to have an
understanding of what is happening, they have uh, - - to form the
consent, both have to have a similar understanding, and I’m not saying
that doesn’t exist in a criminal standpoint, but, in the context of these
cases, the cases - - the court seem to have focused on what was the
Defendant’s intent or understanding of his use of the vehicle.

And um, | think there were - - there had been similar cases in the
past, uh, one, would be State vs. Varnado, [01-367 (La.App. 5 Cir.
9/13/01), 798 So.2d 191], in that particular case a uh, an employee had
use of a transport van to haul employees from one location to another,

3

and he was supposed to be back on Friday evening after transporting
people to the work - - work site, and uh, he didn’t make it back until
Sunday evening. And uh, apparently the employer got uptight about
Mr. Varnado using the van for the weekend, and uh, the Court - - the
Court found there was sufficient proof of intent in that case due to the
fact that the Defendant refused or failed to communicate with his
employer’s repeated requests or repeated attempts to contact him over
that weekend period.

Uh, another case was State vs Spencer [97-811 (La.App. 5 Cir.
1/27/98), 707 So.2d 119]. Uh, in Spencer um, apparently it was a uh,
test drive situation where the Defendant went to a mo - - and automobile
location, and took the car for a test drive, and apparently the salesman,
and the car lot didn’t feel like a 24 hour test drive was reasonable under
the circumstances, and um, the - - the Court seem to agree that they
thought that 24 hours was kind of a long test drive for - - for their
vehicle, and they - - they upheld the conviction for Unauthorized Use
of a Motor Vehicle.

Um, just for purposes of findings in this case, um, the Court
believes that Ms. Spotsville hired [Defendant] to perform um, repair
work to her automobile. And uh, the parties had agreed that he was
going to pick that vehicle up from - - from her house, and take it to his
repair shop. And uh, that - - that seem[s] to be a consistent belief from
all the witnesses. Uh, Ms. Spotsville testified, [Defendant] testified,
and his wife testified, they were all present at the location in the parking
lot where this initial discussion took place where [Defendant] was
going to come pick up the vehicle. There was a further discussion at
Ms. Spotsville’s home where, again, it was discussed that uh, we have
other engagements we’re going to right now, and I’m going to come
back later, and take your car to my shop, and so, I think it’s clear that
[Defendant] had initial um, authorization to drive Ms. Spotsville’s car.

Um, the witnesses are also very consistent that these repairs were
going to be completed by noon the next day. And [Defendant] has
explained that he wasn’t able to meet that deadline and he decided to
extend how long he was going to work on the car until 3:00 PM. He
did not meet that deadline, and everyone is consistent as to, that did not
occur, And [Defendant] unilaterally decided to extend the deadline,
and to drive her car around in Alexandria until he wrecked it around
6:30 or 7 that evening.

It is also significant that there was contact between [Defendant]
and Ms. Spotsville prior to noon and prior to 3:00 PM, but, no
communication from 3:00 PM until - - at some point after the wreck.
Ms. Spotsville testified that she was uh, concerned about her car and
repeatedly tried to contact [Defendant] from 3:00 PM until he - - she
finally got a call.

I think that that is significant. I think it is significant that there
was no communication by [Defendant] from 3:00 PM until after the

4

wreck. And the reason it’s significant is because ] think [Defendant]
knew he had exceeded his authority or had exceeded his use of her
vehicle. Um, whether the reason he took the car was in the scope of his
repair, I don’t think it matters. He had clearly exceeded the time that
everyone had agreed to, everyone had agreed to noon, I don’t think Ms.
Spotsville agreed to 3:00 but she didn’t have much choice. She never
agreed ‘till{sic] 6:30 or 7:00 that PM.

COURT’S RULING

And J think it is - - whether it’s 24 hours, such as in the Spencer
case, or whether it’s two (2) days in the Varnado case, when a defendant
exceeds his permitted use of the vehicle, that is an unauthorized use of
that motor vehicle, and I believe the State has met it’s burden of proving
beyond a reasonable doubt that [Defendant] committed an
Unauthorized Use of Ms. Spotsville’s vehicle on the day in question.

This court, in considering the proof necessary for a conviction for the offense
of unauthorized use of a motor vehicle, has explained:

The Defendant was convicted of unauthorized use of a motor
vehicle, which is “the intentional taking or use of a motor vehicle which
belongs to another, either without the other’s consent, or by means of
fraudulent conduct, practices, or representations, but without any
intention to deprive the other of the motor vehicle permanently.”
La.R.S. 14:68.4.

In State v. Joseph, 05-368 (La.App. 5 Cir. 1/17/06), 921 So.2d
1060, the fifth circuit discussed unauthorized use of a motor vehicle as
follows:

This Court, while acknowledging that there are few
published cases interpreting La. R.S. 14:68.4, has found
the jurisprudence interpreting La. R.S. 14:68 (prohibiting
the unauthorized use of a movable) instructive since the
two statutes proscribe the same conduct. See. State v.
Varnado, 01-367, p. 4 (La.App. 5th Cir.9/13/01), 798
So.2d 191, 193; State v. Spencer, 97-811, pp. 6-7 (La.App.
5th Cir. 1/27/98), 707 So.2d 119, 120.

In State v. Bias, 400 So.2d 650, 652-653 (La.1981),
the Louisiana Supreme Court clarified the meaning of La.
R.S. 14:68 as follows:

A person commits the crime of
unauthorized use of a movable when he either
takes or uses another’s property without the
owner’s consent or by means of fraudulent
practices. [Louisiana Revised Statutes]
14:68, although not requiring that a person

5

act with an intent to deprive the owner
permanently of his property, must reasonably
be construed to require the existence of
fraudulent intent. See: State v. Kelley, 241
La. 224, 128 So.2d 18 (1961). If the statute
were construed otherwise, every breach of a
rental contract would be included within the
reach of the statute, and the Legislature
certainly did not intend such a result.

[La.]JR.S. 14:68 may be violated by a
taking or use either without the consent of the
owner or by means of fraudulent conduct,
practices, or representations.

. . [W]e construe the present statute
proscribing unauthorized use of a movable as
requiring a showing of mens rea or criminal
intent, since the “evil” state of mind of the
actor normally distinguishes criminal acts
(punishable by the state alone) from mere
civil wrongs (actionable by private
individuals against one another).

Id. at 1063-64.

In brief to this court, the Defendant asserts that the entire case
rested on Drewitt’s questionable credibility. The Defendant asserts that
Drewitt conveniently omitted the terms of the loan of his truck and
never testified that it was for a specified time or when he expected it to
be returned. The Defendant points out that Drewitt never testified that
the truck was kept longer than the agreed upon time and, when Drewitt
initially talked to police, the Defendant did not have Drewitt’s truck.

The Defendant further points out that Drewitt testified that a
neighbor “supposedly” chased him with a gun. The Defendant asserts
that it would seem Drewitt would be able to say whether someone
chased him with a gun, and if he had been chased with a gun, he would
have reported it to police. The Defendant asserts that he did not initially
take the truck, so the question then becomes, was there an agreement as
to when it was to be returned and, if so, what was the agreement.

The Defendant then asserts that if Drewitt did not testify to or
perhaps recall the agreement, the State did not meet its burden of proof.
The Defendant further argues that his request for money in exchange
for the return of the truck did not indicate a taking. The Defendant
asserts that in light of the events surrounding the loan of the truck, the

6

request for money is far more indicative of the use of the truck as
collateral so that Drewitt would be fronted drugs.

We find that the Defendant had Drewitt’s permission to use the
truck while Drewitt was at the Defendant’s residence; however, Drewitt
testified that when he was forced to leave the Defendant’s residence, he
made it clear that he wanted his truck back and the Defendant was no
longer permitted to use it. Charles returned the truck to the Defendant
and later saw the Defendant drive the truck. The Defendant then called
Drewitt on November 19, 2005 and stated he would return the truck if
Drewitt paid him two hundred dollars. Additionally, Drewitt was
driving the truck when he encountered the police and fled the scene
upon exiting the vehicle. We find that flight by the Defendant was
indicative of his guilty knowledge that he was not authorized to use the
truck. See State v. Dunbar, 07-219, p. 8 (La.2/26/08), 978 So.2d 899,
904.

The verdict indicates the jury chose to believe Drewitt’s
testimony that the Defendant did not have permission to use the truck
after Drewitt left the Defendant’s residence and that credibility
determination should not be second guessed by this court. State v.

Hatch, 06-1587 (La.App. 3 Cir. 6/6/07), 964 So.2d 394. Based on the
evidence presented, we find that the State proved beyond a reasonable

doubt that the Defendant drove Drewitt’s truck without Drewitt’s

permission. Accordingly, the Defendant’s conviction for unauthorized

use of a motor vehicle is affirmed.

State v. Baylor, 08-141, pp. 9-12 (La.App. 3 Cir. 11/26/08), 998 So.2d 800, 807-08,
writ denied, 09-275 (La. 11/20/09), 25 So.3d 795.

In light of the rationale of Baylor and our standard of review as per Kennerson,
the verdict herein is affirmed. As noted earlier, this case hinged upon credibility,
and a determination regarding credibility is within the province of the factfinder. In
this case, the trial court heard the testimony and chose to believe Ms. Spotsville and
not Defendant or his witness, wife Doris Loyd. In addition, similar to the
defendant’s flight in Baylor, Defendant here fled the scene of the accident in
Alexandria, which can be construed as evidence of guilty knowledge on his part. As
further noted by the trial court, Defendant’s failure to contact Ms. Spotsville after 3

p.m., or answer her calls until their contact by phone hours later after he totaled her

vehicle, can also be construed as guilty knowledge on his part. It is also clear under

our law that the testimony of one witness, the victim in this case, if believed, and
absent internal contradictions or irreconcilable conflicts with physical evidence, is
sufficient to support a conviction. State v. Pierre, 14-1071 (La.App. 3 Cir. 5/6/15),
170 So.3d 348, writ denied sub nom., State ex rel. Pierre v. State, 15-1151 (La.
5/13/16), 191 So.3d 1054. There are no such internal contradictions or irreconcilable
conflicts here. For these reasons, the assignment of error lacks merit, and
Defendant’s conviction is affirmed.
ERRORS PATENT

In accordance with La.Code Crim.P. art. 920, all appeals are reviewed for
errors patent on the face of the record. After reviewing the record, we find there is
one error patent which we find harmless and one error patent which requires
Defendant’s sentence be vacated and the case remanded for resentencing.

The record contains no written waiver of Defendant’s right to trial by jury as
required by La.Code Crim.P. art. 780. Defendant was charged with unauthorized
use of a motor vehicle, a relative felony, as it carries the potential for imprisonment
with or without hard labor for not more than two years when the value of the vehicle
exceeds one thousand dollars. La.R.S. 14:68. “A case in which the punishment may
be confinement at hard labor or confinement without hard labor for more than six
months shall be tried before a jury of six persons, all of whom must concur to render
a verdict” and “a defendant may knowingly and intelligently waive his right to a trial
by jury but no later than forty-five days prior to the trial date and the waiver shall be
irrevocable.” La. Const. Ann. art. I, Sec. 17. “The waiver shall be by written motion
filed in the district court not later than forty-five days prior to the date the case is set
for trial” and “shall be signed by the defendant and shall also be signed by
defendant’s counsel unless the defendant has waived his right to counsel.” La.Code

Crim.P. art. 780

In State v. Bell, 13-1443 (La.App. 3 Cir. 6/4/14), 140 So.3d 830, a different
panel of this court held that the absence of a written waiver of jury trial, as required
by La.Code Crim.P. art. 780, was harmless error where the defendant and his counsel
were in open court when the judge addressed the defendant’s right to a jury trial and
his waiver thereof. The current version of La.Code Crim.P. art. 780 providing for a
written waiver of the right became effective on July 17, 2013. Prior thereto, the
article required only that a defendant knowingly and intelligently waive a trial by
jury and elect to be tried by the judge, at the time of arraignment, and that the court
inform the defendant of his right to waive trial by jury. Prior to the enactment of the
current version of La.Code Crim.P. art. 780, there was no absolute method required
for a waiver of a defendant’s right to a jury trial.

Although it remains the preferred method for the district court to advise
a defendant of her right to trial by jury in open court before obtaining a
waiver, such a practice is not statutorily required. See La.C.Cr.P. art.
780; State v. Kahey, 436 So.2d 475, 486 (La. 1983); State v. Muller, 351
So.2d 143, 146-47 (La.1977). Likewise, it is preferred but not
necessary, for the defendant to waive her right to jury trial personally.
State v. Wolfe, 98-0345, pp. 6-7 (La.App. 4th Cir.4/21/99), 738 So.2d
1093, 1097. Counsel may waive the right on the defendant’s behalf,
provided that the defendant’s decision to do so was made knowingly
and intelligently. /d.; Kahey, 436 So.2d at 486-87.

In the instant case, the record reflects that counsel waived a jury
trial on the defendant’s behalf. On the second day of trial, the district
court memorialized the defendant’s earlier waiver in her presence. At
this time, defense counsel stated that he and his client had discussed the
waiver at length and on several occasions, and that both agreed to the
waiver. In these circumstances, the court of appeal erred in its
determination that the defendant did not waive her right to a jury trial
knowingly and intelligently.

State v. Pierre, 02-2665, pp. 1-2 (La. 3/28/03), 842 So.2d 321, 322

When the trial judge does not follow the preferred method, an
appellate court may nevertheless conduct a de novo review of the record
to ascertain whether the defendant was advised of his or her right to
jury trial; whether the defendant was present when his or her counsel
elected a judge (bench) trial; and, if he or she was present, whether he
or she voiced any objection to the election. See State v. Denson, |1-

0517, pp. 7-8 (La. App. 4 Cir. 1/25/12), 83 So.3d 1183, 1188-89; State
y. Santee, 02-0693, p. 3 (La. App. 4 Cir. 12/4/02), 834 So.2d 533, 535.

State v. Mahogany, 17-377, p. 24 (La.App. 4 Cir. 7/26/17), 225 So0.3d 489, 506-07,
writ denied, 17-1416 (La. 5/18/18), 242 So.3d 1225.

In this case, Defendant was present in open court for arraignment on July 5,
2018 when his counsel waived formal reading of the bill of information and entered
a not guilty plea. Immediately thereafter, Defendant’s counsel requested a judge
trial, in Defendant’s presence. While there is no record of the trial court having
advised Defendant at arraignment of his right to jury trial, Defendant was
represented by counsel and voiced no opposition to the request for a bench trial.
Further, at the actual trial, Defendant acknowledged before the trial judge in open
court that he and counsel discussed, prior to the arraignment, his right to jury trial
and the reasons for the decision to waive that right. We additionally note that
Defendant was not inexperienced in the criminal process; the record reflecting an
extensive arrest history and a previous conviction for felony theft of a motor vehicle,
the offense for which he was on probation at the time of this trial. Thus, like the
defendant in Pierre, Defendant’s acknowledgement of the right to a jury trial and
his reasons for choosing to waive such, albeit during trial, is sufficient to show a
knowing and intelligent waiver. Further, Defendant requested the waiver of his right
to jury trial, did not object to the granting of the waiver, and did not assign as error
or argue the jury waiver issue on appeal. State v. McKeel, 13-855 (La.App. 3 Cir.
2/12/14), 153 So.3d 1029. Accordingly, we find that any error as to failure to file a
written waiver of Defendant’s jury trial right and election of a bench trial to be
harmless under these circumstances.

We further find that in sentencing Defendant, the trial court failed to set the

amount of restitution to be paid to the victim. Specifically, the trial court stated:

10

Order that you pay restitution to Ms. [Spotsville] for the monetary
amount that she paid you, and as well as any out of pocket expenses
that were not covered by insurance. Court will allow you to res - -
reserve the right to a restitution hearing if you and your par - - probation
or parole officer cannot agree on that amount.

In State v. Fussell, 06-324 (La.App. 3 Cir. 9/27/06), 941 So.2d 109, restitution
was imposed pursuant to La.Code Crim.P. art. 883.2, as it was in the instant case.
On error patent review, this court found the defendant’s sentence was indeterminate
due to the trial court’s failure to set the amount of restitution. The trial court stated
in pertinent part:

I’m also gonna[sic] order you to pay all restitution involved with
respect to - - if there is any - - I order you to pay for any and all medical
counseling and health expenses incurred by the victim or her family, as
a consequence of your conviction for these offenses. That’s also
gonna[sic] be - - it’s an indetermined amount, it’s just gonna be
generally made in the judgment. I don’t know what it’s gonna be. I
don’t even know if the State’s gonna[sic] make an application for that.

And I’ve already ordered you to pay for any and all medical
counseling or other health expenses incurred by the victim or her family
as a consequence of your commission of those particular offenses in
that case.

Fussell, 941 So.2d at 139.

This court vacated the defendant’s sentences and remanded the case for
resentencing with the instruction that if restitution was imposed, the trial court must
specify the amount.

The supreme court agreed, stating:

We agree with the Third Circuit Court of Appeal that, due to a
nonspecific restitution order, the sentences imposed upon Defendant by

the trial court were indeterminate and, thus, invalid. See La C.Cr.P. art.

879 (stating that “[i]f a defendant who has been convicted of an offense

is sentenced to imprisonment, the court shall impose a determinate

sentence”); La.C.Cr.P. art. 883.2. Accordingly, this case must now be
remanded for resentencing on all convicted counts.

11

State v. Fussell, 06-2595, p. 25 (La. 1/16/08), 974 So. 2d 1223, 1238 (footnote
omitted).”

Louisiana Code of Criminal Procedure Article 883.2 provides in pertinent
part:
A. In all cases in which the court finds an actual pecuniary loss
to a victim, or in any case where the court finds that costs have been
incurred by the victim in connection with a criminal prosecution, the

trial court shall order the defendant to provide restitution to the victim
as a part of any sentence that the court shall impose.

C. The court shall! order that all restitution payments be made by
the defendant to the victim through the court’s designated intermediary,
and in no case shall the court order the defendant to deliver or send a
restitution payment directly to a victim, unless the victim consents.
Text of par. D effective until August 1, 2019.
D. Notwithstanding any other provision of law to the contrary, if
the defendant is found to be indigent and therefore unable to make
restitution in full at the time of conviction, the court may order a
periodic payment plan consistent with the person’s financial ability.
Text of par. D effective August 1, 2019.
D. Notwithstanding any other provision of law to the contrary, if
the defendant is found to be indigent and therefore unable to make
restitution in full at the time of conviction, the court may order a
periodic payment plan pursuant to the provisions of Article 875.1.
Accordingly, Defendant’s sentence is vacated and the case remanded for
resentencing in accordance with La.Code Crim.P. art. 883.2 with instructions that if
restitution is imposed, the amount must be specified.
DECREE
Defendant’s conviction is affirmed. The sentence is vacated and the case

remanded for resentencing in accordance with La.Code Crim.P. art. 883.2 with

instructions that if restitution is imposed, the amount must be specified.

? Although the supreme court agreed with this court’s ruling on this issue, it reversed this
court on other grounds.

12

CONVICICTION AFFIRMED. SENTENCE VACATED. REMANDED

FOR RESENTENCING WITH INSTRUCTIONS.

13