State of Louisiana v. Donald E. Sneed

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

04-0540

STATE OF LOUISIANA

VERSUS

DONALD E. SNEED

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APPEAL FROM THE
THIRTIETH JUDICIAL DISTRICT COURT,
PARISH OF VERNON, NO. 55144,
HONORABLE JOHN C. FORD, DISTRICT JUDGE

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JIMMIE C. PETERS
JUDGE

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Court composed of Jimmie C. Peters, Michael G. Sullivan, and John B. Scofield,*
Judges.

WRIT GRANTED AND MADE PEREMPTORY.

Edwin L. Cabra
Assistant District Attorney
Thirtieth Judicial District
Post Office Box 1188
Leesville, LA 71446
(337) 239-2008
COUNSEL FOR:
State of Louisiana

Elvin C. Fontenot, Jr.
Attorney at Law
110 E. Texas Street
Leesville, LA 71446
(337) 239-2684
COUNSEL FOR DEFENDANT/APPELLANT:
Donald E. Sneed

*
John B. Scofield participated in this decision by appointment of the Louisiana Supreme
Court as judge pro tempore.

PETERS, J.

We granted this application for supervisory writs to address the issue of

whether a trial court can terminate a defendant’s probation and then reinstate the

probation two years later. In this case, the trial court placed the defendant, Donald

E. Sneed, on supervised probation on February 19, 1999; discharged him from that

probation on April 1, 2000; and reinstated him to that on July 17, 2002. For the

following reasons, we grant the writ application and vacate the trial court order that

reinstated the defendant to probation.

DISCUSSION OF THE RECORD

Between December of 1997 and May of 1998, the defendant engaged in what

can only be described as a crime spree in Vernon Parish, Louisiana, committing

numerous thefts and burglaries. On September 21, 1998, the State of Louisiana

(acting through the Vernon Parish District Attorney’s office, sometimes hereinafter

referred to as the “District Attorney’s office” or the “state”), charged the defendant

by bill of information with thirty-five separate offenses, including one count of

simple criminal damage to property, a violation of La.R.S. 14:56; one count of

aggravated burglary, a violation of La.R.S. 14:60; five counts of simple burglary,

violations of La.R.S. 14:62; ten counts of simple burglary of an inhabited dwelling,

violations of La.R.S. 14:62.2; and eighteen counts of theft, violations of La.R.S.

14:67. The defendant appeared in open court on September 21, 1998, and pled not

guilty to all charges. On that same date, the trial court set all the charges for trial on

December 14, 1998.1

1
The trial court minutes of September 21, 1998, did not separate the simple burglary charges
from the charges of simple burglary of an inhabited dwelling, but simply stated that the defendant
entered a not guilty plea to fifteen counts of simple burglary. Additionally, on October 26, 1998, the
state filed a second bill of information charging the defendant with the same offenses as described
in the September 21, 1998 bill of information. The defendant was again arraigned on the charges and
entered a not guilty plea to all charges. The court minutes of that date contain the same confusion

On December 3, 1998, apparently pursuant to a plea agreement with the

District Attorney’s office, the defendant withdrew his prior plea to ten of the burglary

counts2 and entered guilty pleas to ten counts of simple burglary. The trial court

ordered a presentence investigation report and set a sentencing hearing for February

19, 1999.

At the sentencing hearing,3 the trial court sentenced the defendant, on each

count, to serve twelve years at hard labor and to pay a $1,000.00 fine, gave the

defendant credit for time served, and ordered that the incarceration sentences run

concurrently with each other and with any other sentence to which the defendant was

then subjected. The trial court then suspended all but eight months of the

incarceration sentence,4 suspended the payment of all but one of the fines imposed,

placed the defendant on five years supervised probation, and made the supervised

probation subject to both specific and general conditions.

On March 16, 2000 a probation and parole officer of the Louisiana Department

of Corrections (DOC) filed a motion and order requesting that the trial court terminate

concerning separation of the simple burglary charges from the simple burglary of an inhabited
dwelling charges as did the court minutes of September 21, 1998. While the record contains no
explanation for the second bill of information, it appears that it was filed because the September 21,
1998 bill of information contained only thirty-four charges. A close examination of that bill of
information reflects an error in the numbering of the charges in that two separate charges were
assigned the number “16.” Other than that error, we find no difference in the two bills of
information.
2
The record contains only the minutes of the December 2, 1998 proceedings. The court
minutes indicate that some of the counts to which the defendant plead were originally counts of
simple burglary of an inhabited dwelling. Although neither the trial court minutes nor the remainder
of the record reflects any amendment to the charges related to simple burglary of an inhabited
dwelling, there appears to be no dispute over the fact that the defendant pled guilty only to the simple
burglary charges, violations of La.R.S. 14:62.
3
The trial court also held a hearing on February 17, 1999, and received evidence relative to
the pending sentencing. However, the record before us contains no transcript of that hearing.
4
It is not clear from the record how this eight-month period was derived. However, it appears
that the eight-month period corresponded to the time the defendant had been incarcerated since his
apprehension for the charged offenses.

2

the defendant’s probation effective April 1, 2000. The trial court had already

executed the attached order granting DOC the relief requested. Although the motion

requested that the defendant’s probation be terminated as having been unsatisfactorily

completed, it also stated that the defendant “has complied with all Conditions of

Probation.” The order was signed without a hearing, and DOC gave the District

Attorney’s office no prior or subsequent notice of this action.

Two days after the effective date of the defendant’s probation termination,

Edmond Lacaze, Jr., the District Administrator of DOC, acting on behalf of the

Acting Director of the Probation and Parole Division of DOC, provided the defendant

with a letter addressed “To Whom It May Concern,” specifically stating that the

defendant had completed the sentences imposed upon him on February 19, 1999, and

that he met “all of the requirements for an automatic first offender pardon, as outlined

in R. S. 15:572.” The letter further stated:

Now, therefore, as provided by the constitution, this will certify and
proclaim that effective 040100, SNEED, DONALD is fully pardoned for
the offense above stated and that all rights of citizenship and franchise
are restored in Louisiana, except the right to receive, possess or
transport a firearm.

DOC did not provide the District Attorney’s office with a copy of this letter, although

the letter purports to have provided the Vernon Parish Clerk of Court with a copy.

The matter is now before us because, on July 17, 2002, the trial court, on its

own motion, executed an order reinstating the defendant to supervised probation. On

August 9, 2002, the defendant filed a motion to set aside this reinstatement order,

which motion the trial court rejected after a March 19, 2004 hearing. The defendant

then timely filed this application for supervisory writs, seeking review of that

reinstatement judgment.

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OPINION

The July 17, 2002 reinstatement order provided as follows:

Defendant was placed on five years probation on February 19,
1999, and ordered to satisfy numerous conditions. Defendant’s
probation was terminated unsatisfactorily by order of this court dated
April 1, 2000. This order was executed due to a mistake of fact which
resulted in an illegal sentence under C.Cr.P. Article 897. Pursuant to
Article 882 paragraph (A) the Court’s order of April 1, 2000 terminating
defendant’s supervised probation is rescinded and defendant is returned
to active probation forthwith subject to the conditions originally
imposed.

At the March 19, 2004 hearing, the trial court explained that it had executed

the order releasing the defendant from probation based on DOC’s assertion that,

because the defendant had been incarcerated for a felony conviction arising in Sabine

Parish, Louisiana, he could not satisfy the restitution and fine conditions of his

probation. DOC considered it a vain and useless act to maintain the defendant on

supervised probation during his incarceration.5

The trial court explained that it executed the July 17, 2002 ex parte order

because it had learned that, after his release from the Vernon Parish probation, the

defendant paid $5,000.00 as restitution in Beauregard Parish before being released

from probation on charges arising there.6 In the trial court’s words, “[I]f he’s going

to pay restitution to victims in Beauregard Parish he ought to pay restitution to the

victims in Vernon Parish.” In other words, the mistake of fact concerns whether the

defendant could make restitution to the Vernon Parish victims while incarcerated.

5
While the record is silent concerning the particulars of the Sabine Parish conviction, it is
obvious that its timing was such that it could not be used to revoke the defendant’s probation.
6
The record is silent concerning how the trial court became aware of the Beauregard Parish
probation payments, or whether that which it had been told was in fact correct. The only thing that
is clear is that the information did not come from the District Attorney’s office.

4

The trial court has the power to “modify, change, or discharge the conditions

of probation, or add further conditions authorized by [La.Code Crim.P. art. 895]” at

any time during a defendant’s probationary period. La.Code Crim.P. art. 896.

However, “[i]n a felony case the court may terminate the defendant’s probation and

discharge him at any time after the expiration of one year of probation.” La.Code

Crim.P. art. 897. If discharged after the expiration of at least one year of probation,

“the defendant shall have satisfied the sentence imposed.” La.Code Crim.P. art. 898.

In the matter now before us, the defendant began probation on February 19, 1999, and

was discharged on April 1, 2000. Thus, more than one year had passed since he was

placed on probation.

The state argues that, notwithstanding the provisions of La.Code Crim.P. arts.

897 and 898, the March 15, 2000 order is invalid because it had no notice of the

proposed action. The state points to the notification requirements of La.Code Crim.P.

art. 822(A), which provides as follows:

(1) Should the court on its own motion or on motion of the
defendant consider setting aside a guilty verdict or a plea of guilty or,
after the sentence is imposed, consider amending or modifying the
sentence imposed, the district attorney shall be notified and the motion
shall be tried contradictorily with the district attorney unless the district
attorney waives such contradictory hearing.

(2) Such motions include but are not limited to motions for a new
trial, motions in arrest of judgment, motions for amendment,
modification, or reconsideration of sentence, and motions for
modification of conditions of probation or termination of probation.

(Emphasis added.)

In the matter before us, termination of the defendant’s probation did not result from

the motion of the trial court or the defendant, but from the motion of DOC, an agency

of the state. While La.Code Crim.P. art. 822 could easily require notice to the District

5

Attorney’s office in a situation such as that now before us, it does not, and we cannot

read such a requirement into the Article.

DOC made a determination that the defendant’s supervised probation should

not continue and requested relief from the trial court without communicating with the

District Attorney’s office. The order executed by the trial court met the requirements

of La.Code Crim.P. art. 897, and thus the defendant was deemed to have satisfied his

sentence. La.Code Crim.P. art. 898. The defendant did nothing improper, and he had

complied with all terms of probation at the time of the April 1, 2000 termination. We

have been directed to no authority that would authorize the trial court to reinstate a

defendant’s probation more than two years after he has been properly discharged.

DISPOSITION

For the foregoing reasons, we grant the defendant’s supervisory writ and vacate

and set aside the trial court’s order rescinding its previous order terminating the

defendant’s supervised probation. In doing so, we hereby release the defendant from

any further obligations under his sentences for those offenses.

WRIT GRANTED AND MADE PEREMPTORY.

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