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State v. Berkeley5/30/2001
sentence was illegal. He contends that the trial court erred by requiring him to pay twenty-five percent of his monthly take-home pay to the victim and by not setting a specific restitution amount as required by La. C.Cr.P. art. 895.1. Defendant claims that even if the court had set an amount of restitution, it could not have ordered defendant to continue paying money to the victim, since the victim has already settled a civil lawsuit against defendant.
La. C.Cr.P. art. 895.1 provides in pertinent part:
A. (1) When a court places the defendant on probation, it shall, as a condition of probation, order the payment of restitution in cases where the victim or his family has suffered any direct loss of actual cash, any monetary loss pursuant to damage to or loss of property, or medical expense. The court shall order restitution in a reasonable sum not to exceed the actual pecuniary loss to the victim in an amount certain. However, any additional or other damages sought by the victim and available under the law shall be pursued in an action separate from the establishment of the restitution order as a civil money judgment provided for in Subparagraph (2) of this Paragraph. The restitution payment shall be made, in discretion of the court, either in a lump sum or in monthly installments based on the earning capacity and assets of the defendant.
(2)(a) The order to pay restitution, as provided in this Article, is deemed a civil money judgment in favor of the person to whom restitution is owed, if the defendant is informed of his right to have a judicial determination of the amount and is provided with a hearing, waived a hearing, or stipulated to the amount of the restitution ordered. In addition to proceedings had by the court which orders the restitution, the judgment may be enforced in the same manner as a money judgment in a civil case. Likewise, the judgment may be filed as a lien as provided by law for judgment creditors. Prior to the enforcement of the restitution order, the defendant shall be notified of his right to have a judicial determination of the amount of restitution.
(5) The amount of any judgment by the court hereunder, shall be credited against the amount of any subsequent civil judgment against the defendant and in favor of the victim or victims, which arises out of the same act or acts which are the subject of the criminal offense contemplated hereunder.
B. When a court suspends the imposition or the execution of a sentence and places the defendant on probation, it may in its discretion, order placed, as a condition of probation, an amount of money to be paid by the defendant to any or all of the following:
(5) To the victim to compensate him for his loss and inconvenience. Such an amount may be in addition to any amounts ordered to be paid by the defendant under Paragraph A herein.
In the instant matter, the trial court instructed defendant to pay the victim twenty-five percent of his take-home pay for five years. As such, the trial court failed to set a specific amount to be paid in restitution. Therefore, the sentence as imposed is insufficient to fulfill the statutory requirement that the court set the amount of restitution. State v. Peters, 611 So.2d 191 (La.App. 5 Cir.1992). Accordingly, we vacate the sentence and remand for resentencing to afford the trial court the opportunity to consider the earning capacity and assets of defendant, and to set a determinate amount of restitution.
Finally, pursuant to La. C.Cr.P. art. 920, the record was reviewed for errors patent. The transcript shows that at the time of sentencing, the trial court failed to inform defendant of the prescriptive period for
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