State v. SartainState v. Sartain
Defendant Gilda Sartain was charged by bill of information filed November 10, 1989, with a violation of
At trial NOPD Detective Nat Kruebbe testified that he was assigned to the Pawnshop Division when the defendant‘s name was listed as a suspect to a jewelry theft; his investigation showed that she had made nine separate sales to Mаnner‘s Jewelers in three months. The detective retrieved six items which Mrs. Evelyn Svendson, the victim, identified as her stolen prоperty. Mrs. Svendson testified that the defendant worked in her home two days a week from July, 1988, until August, 1989. Mrs. Svendson said that on August 22, 1989, she cаshed a check for $600.00, and returned home; only her husband and the defendant were in her house. Shortly thereafter, Mrs. Svendson realized she was missing $200.00 of the $600.00; she confronted Gilda Sartain, and the defendant denied taking the money. Mrs. Svendson аlso said that she had found money missing at other times. Mr. Vern Svendson, husband of Evelyn Svendson, testified that when he confronted Gildа Sartain about the missing $200.00, the defendant admitted she had taken it. On another occasion, according to Mr. Svendson, when Mrs. Svendson was missing an expensive ring, Mr. Svendson spoke to Gilda Sartain about it, asking her to look carefully for the ring. On her next working day, the defendant said she had found the ring under a dresser.
Ms. Norma Nickols testified for the defense that Gilda Sartain worked for her, had access to her house and everything in it and had never stolen anything. She also statеd that the defendant had jewelry of her own. Ms Sartain took the stand and
The dеfendant makes two arguments on appeal: first, the restitution imposed is too harsh and insures the probation will fаil; and second, the probationary period exceeds the five year term provided by
Conditions of prоbation not reasonably related to the rehabilitation of the defendant have been struck down. State v. Labure, 427 So.2d 855 (La.1983); State v. Spano, 380 So.2d 620 (La.1980); State v. Morgan, 459 So.2d 6 (La.App. 1st Cir.1984), writ denied 462 So.2d 1263 (La.1985); State v. Thomas, 428 So.2d 950 (La.App. 1st Cir. 1983), writ denied 434 So.2d 410 (La.1983). In State v. Carey, 392 So.2d 443, 444 (La. 1981), the defеndant was convicted of receiving more than $10,000.00 in welfare benefits to which she was not entitled. Her sentencе of five years at hard labor was suspended and she was placed on five years active probatiоn, to serve the first year in parish prison and to make restitution at a rate of $50.00 per week from the time of her release from prison until the entire amount stolen was repaid. The Supreme Court set aside the sentence finding that “the schedule of payments established by the trial court [is] virtually unsupportable by defendant” who earned $528.00 per month and was the sole support of seven children and herself.
Like the defendant in Carey, supra, Ms. Sartain is the sole support of hersеlf and four children; she has earned $35.00 a day as a domestic. A restitution payment of $400.00 per month would take morе than half of her income. This term of probation is unlikely to be fulfilled; it will not promote the rehabilitation of the dеfendant. Indeed, it almost insures the failure of the probation. Thus, the amount of restitution ordered must be set aside аs excessive.
When it appears that the best interest of the public and of the defendant will be served, the court after a first or second conviction of a noncapital felony, may suspend, in whole or in part, the imposition or execution of ... sentences, ... and ... place the defendant on probation under the supervisiоn of the division of probation and parole.... The period of probation shall be specified and shаll not be less than one year nor more than five years. (Emphasis added.)
Furthermore,
For the reasons cited above, we affirm the defendant‘s conviction but set aside the sentence and remand the case for resentencing.
CONVICTION AFFIRMED; SENTENCE SET ASIDE; REMANDED FOR RESENTENCING.