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State v. Perry

Court of Appeal of Louisiana, Fifth Circuit

February 11, 2015

STATE OF LOUISIANA
v.
HERMAN PERRY

ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT, PARISH OF JEFFERSON, STATE OF LOUISIANA. NO. 13-1706, DIVISION " F" . HONORABLE MICHAEL P. MENTZ, JUDGE PRESIDING.

PAUL D. CONNICK, JR., DISTRICT ATTORNEY, Twenty-Fourth Judicial District, Parish of Jefferson, TERRY M. BOUDREAUX, ANNE M. WALLIS, SCHWANNAH MCCARTHY, ASSISTANT DISTRICT ATTORNEYS, Gretna, Louisiana, COUNSEL FOR PLAINTIFF/APPELLEE.

BRUCE G. WHITTAKER, ATTORNEY AT LAW, Louisiana Appellate Project, New Orleans, Louisiana, COUNSEL FOR DEFENDANT/APPELLANT.

Panel composed of Judges Jude G. Gravois, Robert A. Chaisson, and Stephen J. Windhorst.

OPINION

Page 769

[14-818 La.App. 5 Cir. 2] JUDE G. GRAVOIS, J.

Defendant, Herman Perry, appeals his conviction and sentence for theft of goods valued at over $1,500.00. Specifically, he seeks review of the amount of restitution

Page 770

set as part of his sentence. For the reasons that follow, we affirm defendant's conviction and sentence, except that we vacate the trial court's restitution order and remand the matter for further proceedings consistent with this opinion.

PROCEDURAL HISTORY

On April 2, 2013, the Jefferson Parish District Attorney's Office filed a bill of information charging defendant, Herman Perry, with theft of U.S. Currency, valued at greater than $1,000.00, from the Belmont Apartments, in violation of La. R.S. 14:67. On November 25, 2013, defendant was arraigned and entered a plea of not guilty to the charge. On July 21, 2014, the bill of information was amended to theft of U.S. Currency, valued at greater than $1,500.00, from the Belmont Apartments, in violation of La. R.S. 14:67.

[14-818 La.App. 5 Cir. 3] On July 28, 2014, defendant pled guilty under a plea agreement to the amended charge of violating La. R.S. 14:67 (theft of over $1,500.00). Pursuant to the plea agreement, the State did not file a multiple offender bill of information against defendant. Also, it was made clear to defendant during the guilty plea colloquy that as part of the plea agreement, he would be required to pay restitution to the victim in an amount to be determined by the court following a restitution hearing. Defendant was then sentenced, pursuant to the agreement, to imprisonment at hard labor for a term of two years.[1]

Immediately after defendant's guilty plea was accepted and his sentence was imposed, the trial court conducted a restitution hearing. Following testimony from two witnesses, the court set defendant's restitution amount at $15,200.00, to be paid in accordance with a payment schedule filed in the record. Defense counsel orally objected to the amount of restitution as determined by the trial court, which objection was overruled by the trial court and noted for the record. Defendant subsequently filed a motion for reconsideration of the restitution portion of his sentence, arguing that the State " failed to prove the actual amount of ...


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