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Hindenach v. State2/13/2002
ter than the maximum and the forty victim injury points resulted in raising the sentence above the statutory maximum. However, there are other factors which take this case outside the holding in Apprendi. Appellant in this case pled nolo contendere and admitted the facts as presented to the court at the original sentencing hearing in 1997. At that hearing appellant's plea was to the charges of DUI or UBAL with serious bodily injury. The victim was a pedestrian who was hit by appellant's car. He testified at great length about the extent of his multiple injuries which included almost having his left leg amputated. He had multiple surgeries including skin grafts and his medical bills exceeded $150,000.
In addition to permanent disfiguring injuries, the victim sustained a permanent impairment which precludes his gainful employment. In Apprendi, the defendant was charged with and pled guilty to possession of a firearm for an unlawful purpose but thereafter the trial judge made a factual determination by the preponderance of the evidence that the sentence should be enhanced under a separate "hate crime" statute. The defendant was not specifically charged with the hate crime and he did not plead guilty to it.
Appellant in the instant case waived his right to a jury trial and entered his plea of nolo contendere. He admitted that he seriously injured the victim. There was substantial testimony at the original sentencing hearing and resentencing hearing concerning the severity of the victim's injuries. Apprendi does not say that a defendant who pleads to a crime where he was charged with causing serious bodily injury and admits the severity of the victim's injury when he enters his plea would then be entitled to have a jury impaneled to make a factual finding beyond a reasonable doubt whether the injuries were severe, moderate or so minor as to not support any points.
On the basis of the foregoing, although appellant received a sentence in excess of the statutory maximum by pleading nolo contendere to DUI causing serious bodily injury, he waived his right to a jury finding on this issue.
AFFIRMED.
TAYLOR and MAY, JJ., concur.
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