Burt, Lemuel Carl
2014 Tex. Crim. App. LEXIS 1564
| Tex. Crim. App. | 2014Background
- Burt was convicted of misapplication of fiduciary property in excess of $200,000 and sentenced to 14 years’ confinement and a $10,000 fine.
- At sentencing, the trial judge orally pronounced restitution but did not specify an amount.
- The next day the written judgment entered a restitution order for $591,000.
- The Court of Appeals vacated the restitution order and remanded for a restitution hearing.
- On remand, the Court of Appeals again vacated the restitution order and remanded, finding the amount disputed but restitution proper.
- This Court holds that when restitution is part of the oral sentence but the amount/recipients are unsettled, the case should be remanded for a new restitution hearing rather than deleting the restitution order.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether to delete or remand when restitution is orally pronounced but amount unclear | Burt argued for deletion of the restitution order | State argued restitution could stand with a hearing to determine amount | Remand for a restitution hearing, not deletion. |
| Reliance on oral pronouncement versus written judgment | Oral pronouncement contained restitution part; due process requires notice | Written judgment may reflect the final order | Oral pronouncement controls; remand appropriate to fix amount. |
| Due process and factual basis for restitution amount | There was a sufficient factual basis for damages | Amount not supported by record/need hearing | Vacate/remand to develop adequate factual basis for amount. |
Key Cases Cited
- Barton v. State, 21 S.W.3d 287 (Tex. Crim. App. 2000) (remand for restitution hearing when amount not supported by record; due process)
- Cartwright v. State, 605 S.W.2d 287 (Tex. Crim. App. 1980) (remand for restitution determination when amount not supported by record)
- Taylor v. State, 131 S.W.3d 497 (Tex. Crim. App. 2004) (restitution authority requires factual basis for amount; oral pronouncement control)
- Madding v. State, 70 S.W.3d 131 (Tex. Crim. App. 2002) (due process and restitution amount remanded for factual basis)
- Hanna v. State, 426 S.W.3d 87 (Tex. Crim. App. 2014) (restitution must be justified by record; broad interpretation favored)
- Beedy v. State, 250 S.W.3d 107 (Tex. Crim. App. 2008) (remand when amount of restitution not supported; delete unsupported terms)
- Alexander v. State, 301 S.W.3d 361 (Tex. App.—Fort Worth 2009) (oral notice and restitution amount considerations)