Judge should redo punishment due to incorrect indictment, appeals court decides

By Steve Korris | Aug 8, 2011

Jefferson County District Judge Layne Walker punished thief John Patrick Rager too severely, Ninth District appellate judges ruled in July.

The justices in Beaumont vacated Walker's order sentencing Rager to 15 years confinement and requiring him to pay about $240,000 in restitution.

They found that Walker sentenced Rager for felony theft of services in the second degree when he should have sentenced him for third degree felony.

Confusion arose because the caption of Rager's indictment alleged second degree felony but the body of the indictment alleged third degree felony.

"Where the caption lists a different offense from the one alleged in the body of the indictment, the body controls," Justice David Gaultney wrote.

Walker must now impose sentence between two years and 10 years.

He must also decide whether to reduce Rager's restitution.

Rager argued he shouldn't have to pay more than $100,000, because the indictment charged him with theft between $20,000 and $100,000.

Gaultney wrote that the appellate court didn't address restitution because Walker will address it at a sentencing hearing.

Gaultney quoted a precedent that, "Restitution is punishment."

Rager pleaded guilty pursuant to a plea bargain.

Walker placed him on community supervision for 10 years, and ordered restitution.

The state soon moved to revoke community supervision, and Rager admitted he failed to make restitution payments.

Walker allowed him three months, and later allowed six more months.

Rager still didn't pay, and Walker sentenced him to 15 years.

When Rager appealed, prosecutor Rodney Conerly conceded that the law limited Walker to assessing punishment for a third degree offense.

Gaultney wrote, "A sentence not authorized by law is illegal."

Justices Charles Kreger and Hollis Horton concurred.

Thomas Burbank represented Rager.

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