Lombardo v. State, 2017 Tex. App. LEXIS 2285

Background

In Feb. 2004 Lombardo pled guilty to first-degree felony theft (theft ≥ $200,000). Court assessed 10 years confinement, suspended sentence, and placed her on 10 years community supervision with $237,235.34 restitution and 360 hours community service.
Monthly restitution was originally $2,050, reduced to $300 in 2008; beginning Aug. 2010 Lombardo underpaid or stopped paying. By revocation hearing she had paid $33,460.
The State moved to revoke community supervision shortly before its February 2014 expiration for failure to pay restitution. Hearing focused on Lombardo’s ability/willfulness to pay; the court found she willfully failed to pay and revoked supervision.
After revocation the trial court reduced the previously assessed 10‑year term to 4 years’ confinement and entered judgment reflecting the reduced term.
On appeal the court affirmed the revocation but held the 4‑year sentence illegal because the statutory minimum for first‑degree felony was 5 years; the court reversed the reduced sentence and remanded for resentencing in compliance with article 42A.755(a).

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether trial court erred by failing to consider the §(h)(6) statutory factor (victim’s ability to pay) at revocation	Lombardo: 2008 modification of monthly payment invoked the 2005 statute, so court had to consider the additional factor	State: original restitution order was 2004; the 2008 payment modification was not a new order triggering the 2005 statute	Held: No error — the pre‑2005 statute applied; the 2008 change merely modified the original order
Whether revocation was improper because Lombardo could not afford restitution (Bearden/due process)	Lombardo: evidence showed inability to pay; revocation violated due process and Bearden requires considering alternatives to incarceration	State: trial court heard and considered financial evidence and concluded failure was willful; no timely federal due process objection below	Held: No abuse of discretion — court considered statutory factors and concluded failure to pay was willful; Bearden does not require reversal here
Whether reducing sentence to 4 years after revocation produced an illegal sentence below statutory minimum	Lombardo: 4 years is below the 5‑year minimum for first‑degree felony and therefore illegal	State: trial court may reform sentence when revoking supervision in interests of justice (but must stay within statutory range)	Held: Reversed — 4‑year term is void as below the 5‑year statutory minimum; remanded for resentencing to between 5 and 10 years (or reinstatement of the original 10) in defendant’s presence
Whether notation changing the pronounced sentence constituted improper re‑sentencing outside defendant’s presence	Lombardo: handwritten change from 4 to 3 years indicates impermissible re‑sentencing out of her presence	State: record is insufficient or issue is moot given reversal on illegal sentence	Held: Moot — court did not decide because it reversed the sentence on statutory‑minimum grounds

Key Cases Cited

Bearden v. Georgia, 461 U.S. 660 (U.S. 1983) (due process requires consideration of alternatives before incarcerating an indigent probationer for nonpayment unless failure to pay was willful)
Bryant v. State, 391 S.W.3d 86 (Tex. Crim. App. 2012) (former restitution statute governs orders entered before Sept. 1, 2005; court may revoke probation for failure to pay where statutory factors considered)
Leonard v. State, 385 S.W.3d 570 (Tex. Crim. App. 2012) (standard of review for revocation is abuse of discretion; due process concerns govern proceedings)
Rickets v. State, 202 S.W.3d 759 (Tex. Crim. App. 2006) (revocation must be supported by preponderance that probation condition was violated)
Mizell v. State, 119 S.W.3d 804 (Tex. Crim. App. 2003) (sentence outside statutory range is illegal and void; courts may correct illegal sentences even absent objection)