805 A.2d 944 (D.C. 2002), 00-CO-929, Gotay v. United States

Docket Nº:00-CO-929.
Citation:805 A.2d 944
Party Name:Jesse GOTAY, Appellant, v. UNITED STATES, Appellee.
Case Date:August 29, 2002
Court:Court of Appeals of Columbia District
 
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805 A.2d 944 (D.C. 2002)

Jesse GOTAY, Appellant,

v.

UNITED STATES, Appellee.

No. 00-CO-929.

Court of Appeals of Columbia District

August 29, 2002.

Submitted June 28, 2001.

Robert Athanas, appointed by the court, was on the brief for appellant.

Wilma A. Lewis, United States Attorney at the time the brief was filed, and John R. Fisher, Thomas J. Tourish, Jr., Michael G. Geffroy, and Eileen F. Sheehan, Assistant United States Attorneys, were on the brief for appellee.

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Before TERRY and GLICKMAN, Associate Judges, and BELSON, Senior Judge.

TERRY, Associate Judge:

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). [1] 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. [2] 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. [3] 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

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$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). [4] 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.

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