State v. Wilson, 16851
| Decision Date | 24 May 1990 |
| Docket Number | No. 16851,16851 |
| Parties | STATE of South Dakota, Plaintiff and Appellee, v. Delbert Allen WILSON, Defendant and Appellant. . Considered on Briefs |
| Court | South Dakota Supreme Court |
Craig M. Eichstadt, Asst. Atty. Gen., Pierre, for plaintiff and appellee; Roger A. Tellinghuisen, Atty. Gen., Pierre, on brief,
David R. Wurm, Office of the Public Defender, Rapid City, for defendant and appellant.
Delbert Allen Wilson (Wilson) appeals the restitution award in his sentence for third offense driving while under the influence of alcohol (DWI). We reverse the restitution portion of his sentence.
Wilson was arrested for DWI in Rapid City, South Dakota, on June 12, 1989, after the car he was driving (owned by another party) collided with the rear end of the third in a series of three vehicles stopped at an intersection waiting for a red traffic light. He was subsequently charged in an information with one count of driving while under the influence of alcohol (SDCL 32-23-1(2)) and an alternative count of driving with .10 percent or more of alcohol in his blood (SDCL 32-23-1(1)). Additionally, state filed a Part II Information charging Wilson with felony third offense DWI (SDCL 32-23-4).
Wilson was arraigned on July 3, 1989. The trial court advised him of his constitutional and statutory rights and of the maximum penalty he faced (i.e., two years in the penitentiary and/or a fine of $2,000) as required by SDCL 23A-7-4. However, the trial court did not mention the possibility that restitution could be imposed. Wilson entered not guilty pleas to the alternative DWI counts and also denied the prior DWI offenses alleged in the Part II Information.
On August 4, 1989, Wilson changed his pleas pursuant to a plea bargain. Wilson's counsel outlined the terms of the bargain to the trial court. Wilson agreed to plead guilty to the driving while under the influence of alcohol count (SDCL 32-23-1(2)) and to admit the allegations of the Part II Information if state dismissed the alternative count of driving with .10 percent or more of alcohol in the blood (SDCL 32-23-1(1)) and certain additional traffic citations. State agreed that these were the terms of the plea bargain and said nothing concerning restitution as a part of the bargain.
After hearing the terms of the plea bargain, the trial court again informed Wilson of the maximum penalty he faced by pleading guilty (i.e., two years in the penitentiary and/or a fine of $2,000) but made no mention of restitution. The trial court did inform Wilson that it would not be bound by any sentencing recommendation. Wilson went forward and entered his pleas as outlined in the plea bargain and sentencing was set for a time after completion of a presentence investigation and report.
Wilson's sentencing took place on August 21, 1989. He was sentenced to two years in the penitentiary and a fine of $500. Additionally, restitution was ordered in the amount of $4,068.02 to reimburse State Farm Insurance Company, the insurer of the vehicle driven by Wilson, for the sums it paid out in connection with the accident. Wilson raised various objections to the restitution award during sentencing which were denied by the trial court.
After sentencing, Wilson filed a motion to amend the judgment to strike the restitution provision. During a hearing on the motion, the trial court again rejected Wilson's objections to the restitution award and proceeded to take evidence relating to the amount of restitution pursuant to SDCL 23A-28-3. * State presented the testimony of the driver of the vehicle rear ended by Wilson and the arresting officer concerning the circumstances of the accident and Wilson's inebriated condition at that time. Additionally, state presented the testimony of a claims adjuster for State Farm Insurance Company concerning the money it paid out for property damage to the vehicle rear ended by Wilson and to the car he was driving. The adjuster further testified that the owner of the vehicle Wilson was driving had to pay a $250 deductible on her policy to the shop that did the repair work on her car.
Wilson presented no evidence or testimony during the hearing. After the hearing, the trial court entered a written order amending the original restitution award in the judgment by increasing it $250 to account for the deductible paid by the owner of the car driven by Wilson. Wilson appeals.
WHETHER THE TRIAL COURT ERRED IN AWARDING RESTITUTION AS
Wilson argues that the trial court erred in ordering him to pay restitution as a part of his sentence because it did not inform him of the possibility of restitution before he entered his pleas, because the restitution ordered does not pertain to the offense to which he pled guilty, and because the award violates the statutory boundary between civil and criminal litigation.
We find Wilson's contention concerning failure to mention restitution before he entered his pleas well taken and controlled by our decision in State v. Wolff, 438 N.W.2d 199 (S.D.1989). In Wolff, the defendant, acting pursuant to a plea bargain, pled guilty to one count of theft. In return, state dismissed certain non-sufficient funds (NSF) check charges. As in this case, nothing was said about restitution during the plea hearing. When Wolff was sentenced, however, he was ordered to pay some $15,000 in restitution relating to the NSF check charges. We reversed the order of restitution concluding that the award of a substantial amount of restitution without articulation of that possibility in the plea bargain violates a defendant's due process rights under the Fifth and Fourteenth Amendments to the United States Constitution and Article VI, Sec. 2 of the South Dakota Constitution. Our rationale for this conclusion emphasized the defendant's sentencing expectations after articulation of the plea bargain. We reasoned that a substantial amount of restitution should be articulated in the plea bargain so that the accused can accept or reject a bargain containing that condition. We further reasoned that ordering a large amount of restitution without making it a part of the bargain materially alters the expectation of the parties. We concluded our analysis stating, "[h]ere, where the plea hearing contains no hint of restitution, and the court discussed only potential imprisonment...
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