State v. Durio5/26/2004
PUBLISHED
AFFIRMED AS AMENDED AND REMANDED WITH INSTRUCTIONS.
Defendant, Todd Durio, pled guilty to operating a vehicle while intoxicated (OWI), third offense, in violation of La.R.S. 14:98. Defendant was sentenced to five years at hard labor, with all but thirty days suspended. The thirty days were imposed without benefit of parole, probation, or suspension of sentence, with credit for time served. Additionally, Defendant was sentenced to fifty-nine months of home incarceration, sixty hours of community service, as well as a fine of $2,000, plus court costs, with various other conditions. At the time of the guilty plea, Defendant reserved his right under State v. Crosby, 338 So.2d 584 (La.1976), to appeal the trial court's denial of a motion to quash one of the predicate offenses. It is from this ruling that Defendant now appeals.
Facts
Defendant was arrested on March 27, 2002, after he lost control of his vehicle and drove into a ditch on Paul White Road in Calcasieu Parish. He pled guilty to OWI, third offense.
Errors Patent
In accordance with La.Code Crim.P. art. 920, this court reviews all appeals for errors patent on the face of the record. After reviewing the record, we find that there are two errors patent and that the minutes of sentencing require correction.
First, the trial court ordered Defendant to pay a $2,000 fine, plus court costs, as a condition of probation pursuant to a "payout schedule that will be overseen by [Defendant's] probation officer." However, the record does not indicate that the trial court ever established a payment schedule to be overseen by the probation officer. Thus, we find that the trial court erred in failing to establish a payment plan for the fine and costs payable as a condition of probation. See State v. Reynolds, 99-1847 (La.App. 3 Cir. 6/7/00), 772 So.2d 128, and State v. Fontenot, 01-540 (La.App. 3 Cir. 11/7/01), 799 So.2d 1255. Accordingly, we will remand the case with instructions that the trial court establish a payment plan for the fine and costs ordered as a condition of probation.
Second, the trial court ordered Defendant to pay a one-time fee of $250 to the "Traumatic Head Injury Fund" pursuant to La.R.S. 46:2633, which provides in part:
A. There is hereby established a special fund in the state treasury to be known as the Traumatic Head and Spinal Cord Injury Trust Fund which shall consist of monies collected from an additional fee imposed on all motor vehicle violations for driving under the influence , reckless operation, and speeding in this state. In addition, the legislature may make annual appropriations to the trust fund for the purpose set forth in this Chapter to the extent that state general funds are available.
B. (1)(a) Beginning January 1, 1994, in addition to all fines, fees, costs, and punishment prescribed by law, there shall be imposed an additional fee of twenty-five dollars on driving under the influence offenses, five dollars on reckless driving operation offenses, and five dollars on speeding offenses.
(b) Beginning July 1, 2000, the additional fees imposed pursuant to Subparagraph (a) of this Paragraph shall be as follows:
(v) A fee of one hundred dollars on third convictions of operating a vehicle while intoxicated offenses.
(vi) A fee of two hundred fifty dollars on fourth or subsequent convictions of operating a vehicle while intoxicated offenses.
Although Defendant was originally charged with OWI, fourth offense, the bill was amended to OWI, third offense. Defendant pled guilty to OWI, third offense. Given that La.R.S. 46:2633(B)(1)(b)(v) prov
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