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Gotay v. United States

August 29, 2002

JESSE GOTAY, APPELLANT
v.
UNITED STATES, APPELLEE



Appeal from the Superior Court of the District of Columbia (M-3512-00) (Hon. Anita Josey-Herring, Trial Judge)

Before Terry and Glickman, Associate Judges, and Belson, Senior Judge.

The opinion of the court was delivered by: Terry, Associate Judge

Submitted June 28, 2001

Appellant pleaded guilty to a one-count information charging him with possession of marijuana. At sentencing, the trial court placed him on supervised probation for a period of nine months, pursuant to D.C. Code § 33-541 (e)(1) (1998). *fn1 The court also imposed a fine of $250 as a condition of probation. Appellant asserts on appeal that the imposition of the $250 fine was an illegal sentence and asks us to reverse that portion of the judgment. The government concedes that the imposition of the fine was improper, but maintains that the appropriate remedy is for us to remand the case so that the trial court can assess the $250 as costs under the Victims of Violent Crimes Compensation Act (VVCCA), as it originally intended to do. We agree with the government and remand the case for that purpose.

I.

On May 24, 2000, appellant entered a plea of guilty to the possession charge pursuant to a plea agreement with the government. *fn2 At the request of defense counsel, and without objection from either appellant or the government, the court waived a pre-sentence investigation and proceeded directly to sentencing that day. Because appellant was a first-time drug offender, his counsel asked the court to sentence him under D.C. Code § 33-541 (e)(1), which provides that the trial court may, upon motion and in its discretion, place a first-time drug offender on probation without the entry of a judgment of guilty. *fn3 See In re D.F.S., 684 A.2d 1281, 1283 (D.C. 1996); Houston v. United States, 592 A.2d 1066, 1067 n.1 (D.C. 1991). The court agreed, stating that it would sentence appellant to nine months' probation under section 33-541 (e) and assess "a $250 Victims of Violent Crimes Compensation Act cost."

Defense counsel objected to the assessment of $250 in costs, arguing that the VVCCA did not apply to persons sentenced to probation without judgment under section 33-541 (e). In response to counsel's objection, the court reconsidered the imposition of the VVCCA costs, and ultimately agreed with defense counsel that the VVCCA did not apply in appellant's case. The court instead imposed a $250 fine as a condition of appellant's probation, stating:

[T]he statute says that I can place the defendant on probation and set a reasonable condition as it may require, as I require, for a period not to exceed one year. I guess what I'm saying is that one of the conditions that I'm setting is that he pay a fine, which I believe I have the authority to do.

Despite her statement at sentencing that she would require appellant to pay a $250 fine as a condition of probation, the judge later signed an "Order Assessing Costs" under the VVCCA in the amount of $250. About three weeks later, defense counsel filed a "Motion to Correct the Order Assessing Costs," asserting that the order was a clerical error and should be vacated, and that the judge instead should simply require appellant to pay a fine of $250 as part of his sentence. Shortly thereafter the judge signed an amended order imposing a nine-month period of probation without adjudication of guilt, pursuant to D.C. Code § 33-541 (e)(1). *fn4 Under the section listing the conditions that must be observed as part of probation, a handwritten note stated that the court "assessed a $250.00 fine," but without mentioning the VVCCA.

II.

A. The Fine

At the end of the sentencing hearing, the trial court concluded that it had the authority to require appellant to pay a $250 fine as a condition of probation. Appellant argues, and the government concedes, that the trial court had no such authority.

This court has held that an illegal sentence "is one at variance with the controlling sentencing statute . . . or illegal in the sense that the court goes beyond its authority by acting without jurisdiction or imposing a sentence in excess of the statutory maximum provided . . . ." Allen v. United States, 495 A.2d 1145, 1149 (D.C. 1985) (en banc) (citations and internal quotation marks omitted). Section 33-541 (e) does not authorize a fine, *fn5 but states that the trial court may place a defendant "on probation upon such reasonable conditions as it may require." The issue before us in this case is whether the trial court had the power to impose a $250 fine as a "reasonable condition" of probation under section 33-541 (e). We hold that it did not and that the fine was therefore illegal.

Generally, "[j]udicial discretion in formulating terms and conditions of probation is . . . limited by the requirement that the conditions be reasonably related to the rehabilitation of the convicted person and the protection of the public." Moore v. United States, 387 A.2d 714, 716 (D.C. 1978) (citations omitted). While, under these principles, a fine generally may be imposed as a condition of probation, see Durst v. United States, 434 ...


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